Bernstein v. Snyder et al

Filing 65

REPORT AND RECOMMENDATIONS re 58 Motion for Summary Judgment, filed by Jeffrey Snyder, Jeff's Resurrections LLC. Signed by Judge Susan Hightower. (dm)

Case 1:20-cv-01186-RP Document 65 Filed 01/18/23 Page 1 of 16

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
RONALD BERNSTEIN,
Plaintiff

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v.
JEFFREY SNYDER, JEFF’S
RESURRECTIONS, LLC, and
UNKNOWN PARTIES,
Defendants

Case No. 1:20-CV-1186-RP

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

Before the Court are Defendants Jeffrey Snyder and Jeff’s Resurrections, LLC’s Motion for
Summary Judgment, filed July 25, 2022 (Dkt. 58); Plaintiff’s Response, filed August 11, 2022
(Dkt. 60);1 and Defendants’ Reply, filed August 17, 2022 (Dkt. 62). By Text Order entered on
October 17, 2022, the District Court referred the motion to this Magistrate Judge for report and
recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72, and
Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western
District of Texas, as amended (“Local Rules”).
I.

Background

Plaintiff Ronald Bernstein owns a “rare and classic” 1994 Jaguar XJ-220 (“Vehicle”).2 Dkt. 1
(Complaint) ¶ 4; Dkt. 60 at 2. Defendant Jeffrey Snyder owns Jeff’s Resurrections, LLC, a Texas
limited liability company specializing in restoring classic and antique automobiles. Plaintiff sues

1

Plaintiff filed his response on August 11, 2022, two days after the response deadline under Local Rule
CV-7(d)(2). By Text Order entered August 29, 2022, the District Court granted Plaintiff’s Motion to Extend
Time to Respond to Defendants’ Motion for Summary Judgment.
2

Plaintiff purchased the car “in 1999 or 2000” for $275,000. Dkt. 60 at 2.

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Snyder and Jeff’s Resurrections (collectively, “Defendants”) for claims arising out of Defendants’
maintenance work on the Vehicle.
Plaintiff alleges that Snyder approached him at an auction in Phoenix, Arizona and offered to
perform mechanical and cosmetic work on the Vehicle for $20,000 to $30,000, including parts and
labor. Id. ¶ 8. Plaintiff alleges that he accepted the offer and, on January 23, 2011, Defendants took
possession of the Vehicle and transported it from Arizona to Texas. Id. ¶¶ 8, 21. Plaintiff alleges
that he made an initial down payment of $17,000 on May 16, 2013, and subsequently paid all
invoices. Id. ¶ 13.
Four years later, on June 27, 2017, Defendants informed Plaintiff that a sleeve on one of the
cylinders in the engine needed to be replaced, and that the work should be performed by Don Law
Racing, LLC, an automobile restoration company located in England. Id. ¶ 14. Plaintiff alleges
that Defendants then transported the Vehicle’s engine to Don Law Racing in England without his
permission and “authorized Don Law Racing to perform a complete rebuild of the engine.” Id.
¶ 15. Plaintiff alleges that the outstanding balance for the engine rebuild is approximately £29,750.
Id. The engine remains in England “and will not be released until such time as the expenses for
the rebuild have been satisfied.” Id. ¶ 16. Plaintiff alleges that he has satisfied the outstanding
balance to Don Law Racing, but Defendants have “refused to acknowledge or satisfy the expenses
incurred with Don Law Racing.” Id. ¶ 17.
Plaintiff alleges that he discovered through a copy of the estimate obtained from Don Law
Racing that “the condition of the engine was in a dilapidated state at the time it was received by
Don Law Racing LLC and it was due to the workmanship involved in the placing of the new belts
and hoses.” Id. ¶ 18. Plaintiff further alleges that Defendants now claim to be owed additional
funds and have refused to return the Vehicle to Plaintiff without that payment. Id. ¶ 19. Plaintiff

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contends that when he “finally got his car in 2021 from Jeff Snyder and Jeff’s Resurrection it was
no longer a car. Rather, after 10 years, it was in boxes and in parts.” Dkt. 60 at 2.
Plaintiff filed suit against Defendants in the United States District Court for the District of
Arizona based on diversity of citizenship under 28 U.S.C. § 1332(a). In his Complaint, Plaintiff
alleges that Defendants breached the contract by “failing to safeguard the vehicle” and “failing to
perform the work [they] had agreed to perform.” Dkt. 1 ¶¶ 31, 32. Plaintiff further alleges that
Defendants “negligently performed mechanical work” and “negligently maintained the vehicle
while in its possession.” Id. ¶¶ 35, 36. Plaintiff asserts claims for breach of contract, negligence,
and replevin. He also seeks compensatory damages, an award of possession of the Vehicle free
and clear of any claims, and attorneys’ fees and costs.
In their Answer, Defendants state that “they agreed to perform a mechanical service as parts
became available and leak inspection of Plaintiff’s XJ-220 Jaguar and that upon completion of the
mechanical service, Defendants would perform an evaluation of cosmetic issues.” Dkt. 23
(Defendants’ Answer to Complaint) ¶ 8. Defendants state that “an inspection of the vehicle took
place in 2012,” which involved “starting the engine briefly and observing the presence of a preexisting coolant leak.” Id. ¶ 8. Defendants admit that, some six years after taking possession of the
Vehicle, they determined that one or more cylinder sleeves of the engine needed to be replaced,
told Plaintiff that the engine repair should be performed by Don Law Racing, and arranged to
transport the engine to England, but deny that they are responsible for satisfying the expenses
incurred by Don Law Racing. Id. ¶¶ 14-16, 17. Defendants admit that “all invoices for work
performed by Defendants have been satisfied,” but allege that they paid some $2,500 in duties and
shipping charges so Plaintiff’s agent could take receipt of the engine on arrival. Id. ¶ 13.

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Defendants also state that they “loaned Plaintiff’s agent an engine box worth approximately $800
which the agent promised to return but has not done so.” Id.
Defendants moved to dismiss Plaintiff’s lawsuit for lack of personal jurisdiction and improper
venue or, in the alternative, asked the Court to transfer it to the Western District of Texas. Dkt. 13.
The District Court for the District of Arizona then transferred the case to this District. Dkt. 17.
Defendants now move for summary judgment on all Plaintiff’s claims under Rule 56(a).
Defendants contend that Plaintiff has not produced sufficient evidence to support his claims.
Defendants also argue that Plaintiff’s claims against Snyder fail as a matter of law because he
cannot be held personally liable without evidence that he acted outside his capacity as a
member/manager of Jeff’s Resurrection.
II. Legal Standard
Summary judgment shall be rendered when the pleadings, the discovery and disclosure
materials, and any affidavits on file show that there is no genuine dispute as to any material fact
and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir.
2007). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). When ruling on a motion for summary judgment, the court is required to view all
inferences drawn from the factual record in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at
508. A court “may not make credibility determinations or weigh the evidence” in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000); see also Anderson, 477 U.S. at 254-55.

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Once the moving party has made an initial showing that no evidence supports the nonmoving
party’s case, the party opposing the motion must come forward with competent summary judgment
evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory
allegations are not competent summary judgment evidence and thus cannot defeat a motion for
summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
Unsubstantiated assertions, improbable inferences, and unsupported speculation also are not
competent summary judgment evidence. Id.
The party opposing summary judgment must identify specific evidence in the record and
articulate the precise manner in which that evidence supports its claim. Adams v. Travelers Indem.
Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). “Rule 56 does not impose upon the district court
a duty to sift through the record in search of evidence to support a party’s opposition to summary
judgment.” Id. If the nonmoving party fails to make a showing sufficient to establish the existence
of an element essential to its case and on which it will bear the burden of proof at trial, summary
judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Analysis
Defendants argue that the Court should grant summary judgment on Plaintiff’s negligence and
breach of contract claims because Plaintiff has offered no evidence to support an award of
damages. For Plaintiff’s replevin claim, Defendants contend that they are entitled to summary
judgment because it is undisputed that the Vehicle is in possession of Plaintiff’s designated expert
and Plaintiff has no evidence that Defendants still possess any parts. Plaintiff responds that there
was a bailment contract between the parties, establishing a rebuttable presumption of negligence
related to damage to the Vehicle while it was in Defendants’ possession, and that Defendants
breached the bailment contract by not performing repairs or returning the Vehicle.

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A. Negligence
The Court first considers whether Plaintiff is entitled to a rebuttable presumption of negligence
based on the existence of a bailment relationship between the parties.
1. Bailment Relationship
Plaintiff asserts that a bailment relationship was created when Defendants took possession of
the Vehicle, giving rise to a rebuttable presumption of negligence regarding damage to it.
Defendants respond that bailment does not apply because Defendants have provided evidence that
the Vehicle was not in good condition when they took possession of it and Plaintiff offers no
evidence that they damaged the Vehicle.
Under Texas law, a bailor-bailee relationship requires: (1) delivery of personal property from
one person to another for a specific purpose; (2) acceptance by the transferee of such delivery;
(3) an agreement that the purpose will be fulfilled; and (4) an understanding that property will be
returned to the transferor. United States v. $500,000.00 in U.S. Currency, 591 F.3d 402, 405
(5th Cir. 2009) (citing Sears Roebuck & Co. v. Wilson, 963 S.W.2d 166, 168-69 (Tex. App.—Fort
Worth 1998, no pet.)). A bailment relationship does not create a specific cause of action, but allows
the bailor to bring contract or tort claims, depending on the facts of the case and the type of action
the plaintiff chooses to assert. Crompton Greaves, Ltd. v. Shippers Stevedoring Co., 921
F. Supp. 2d 697, 728 (S.D. Tex. 2013) (citing Int’l Freight Forwarding, Inc. v. Am. Flange, 993
S.W.2d 262, 269 (Tex. App.—San Antonio 1999, no pet.)). Common law liability of a bailee to a
bailor is limited to the consequence of the bailee’s fault or negligence, although this liability may
be enlarged to place a greater risk on the bailee by agreement of the parties. N. Marine
Underwriters, Ltd. v. FBI Exp., Inc., 697 F. Supp. 2d 695, 706 (S.D. Tex. 2009) (citing McKenzie
Equip. Co. v. Hess Oil & Chem. Corp., 451 S.W.2d 230, 230 (Tex. 1970)).

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“In a bailment for mutual benefit, a rebuttable presumption of negligence and a prima facie
case of liability is established by a bailor against the bailee upon proof that the bailed chattel was
not returned.” Buchanan v. Byrd, 519 S.W.2d 841, 843 (Tex. 1975). A bailor can make a
prima facie showing of negligence by presenting evidence that (1) a bailment relationship existed,
(2) the goods were delivered to the bailee in good condition, and (3) the goods were returned
damaged. Crompton Greaves, 921 F. Supp. 2d at 728 (citing Prime Prods., Inc. v. SSI Plastics,
Inc., 97 S.W.3d 631, 635 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)). The presumption
of negligence can be rebutted by evidence that the bailee used all ordinary care in handling the
property or by showing some other cause of the loss or injury. Id.
Texas courts have found a bailor/bailee relationship where a car was damaged as it was being
serviced. Cessna Aircraft Co. v. Aircraft Network, L.L.C., 213 S.W.3d 455, 463 (Tex. App.—
Dallas 2006, pet. denied). To be entitled to the presumption, however, Plaintiff must show that he
delivered the Vehicle to Defendants in good condition. See, e.g., Crompton Greaves, 921
F. Supp. 2d at 728 (finding that plaintiff failed to make a prima facie showing under Texas law
because it did not provide sufficient evidence that the bailee received the property in good
condition).
The Court finds that Plaintiff has not shown he delivered the Vehicle to Defendants in good
condition and therefore is not entitled to the presumption of negligence under bailment law.
Plaintiff asserts that the Vehicle won “Best in Class at the Concours D’Elegance” car show in
October 2010. Dkt. 60-16 (Bernstein Affidavit) ¶ 15. He offers no other evidence on the condition
of the Vehicle when Defendants took possession three months later, on January 23, 2011. But
Defendants offer evidence that the Vehicle was not in good condition. Snyder testified at
deposition that, when Defendants took position of the Vehicle, it was “running rough,” meaning

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“the engine wasn’t firing on all six cylinders” and was “shaking.” Dkt. 60-1, Snyder Tr. at
180:15-21. Snyder also testified that Defendants understood they were supposed to find the source
of a coolant leak when they took possession of the Vehicle. Id. at 202:3-11; Dkt. 60 at 3.
Defendants also submitted evidence that the Vehicle had been damaged before Jeff’s
Resurrection began work. Dkts. 58-7 at 2-3, 58-8 at 3. This includes a copy of a complaint Plaintiff
filed against the Vehicle’s insurer in 2011 alleging that in 2004, the Vehicle suffered “extensive
damage” when another car hit it in a parking lot and additional damage “caused by a vehicle fire”
a few months later. Dkt. 58-7 ¶¶ 3-4. Defendants also filed a report by Nationwide Inspections
dated April 6, 2011, which states that the Vehicle “appears to have numerous oil leaks,” and that
its hoses “and all rubber lines appear brittle due to age and possibly heat related.” Dkt. 58-8 at 3.
Considering all evidence of the record, the Court finds that Plaintiff has not made a prima facie
showing that the presumption of negligence under bailment law applies. Therefore, the Court
considers Plaintiff’s claim under standard negligence principles.
2. Standard Negligence
To establish negligence under Texas law, a plaintiff must show that a defendant (1) owed the
plaintiff a duty of care, (2) breached the duty, and (3) the defendant’s breach proximately caused
injury to the plaintiff. IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004).
Liability cannot turn on speculation or conjecture. Purina Mills, Inc. v. Odell, 948 S.W.2d 927,
936 (Tex. App.—Texarkana 1997, pet. denied). Establishing causation requires a plaintiff to bring
forth sufficient facts that the evidence and its logical inferences support the reasonable probability
that the defendant’s acts or omissions were a substantial factor in bringing about injury. Id.
Under Texas law, expert testimony on causation is required where the connection between a
defendant’s conduct and the plaintiff’s harm is beyond the common understanding of a layperson.
Dulces Arbor S. de R.L. de C.V. v. Delgado, No. 1:10-CV-918-LY, 2012 WL 13029515, at *2
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(W.D. Tex. May 4, 2012) (citing Alexander v. Turtur & Assoc., Inc., 146 S.W.3d 113, 119
(Tex. 2004)). Highly technical matters of design and engineering require scientific, technical, or
specialized knowledge. Kallassy v. Cirrus Design Corp., No. 3:04-CV-0727N, 2006 WL 1489248,
at *3 (N.D. Tex. May 30, 2006) (citing Rangel v. Lapin, 177 S.W.3d 17, 22 (Tex. App.—Houston
[1st Dist.] 2005, pet. denied)), aff’d, 265 F. App’x 165 (5th Cir. 2008). Because this case involves
the performance of mechanical maintenance not within the common understanding of laypersons,
expert testimony is required. See Hill v. Sonic Momentum JVP, LP, No. 01-20-00367-CV, 2021
WL 3501540, at *4 (Tex. App.—Houston [1st Dist.] Aug. 10, 2021, pet. denied) (stating, in a case
involving damage to a vehicle, that Texas courts require expert testimony “in similar
circumstances involving mechanical maintenance”) (citing FFE Transp. Servs., Inc. v. Fulgham,
154 S.W.3d 84, 91 (Tex. 2004)); Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738 (Tex. App.—
Amarillo 1999, pet. denied) (holding that performance of mechanical work on turbine aircraft
engines is not within the experience of a layperson).
Plaintiff’s expert, Jeremy Carpenter, testified that:
•

When he visited Jeff’s Resurrections on February 17, 2020, he observed “moisture on
the inside of the glass of the car, both the windshield and side windows, that’s created
by a variance in the temperatures.” Dkt. 60-8 Carpenter Tr. at 94:12-15.

•

The Vehicle “needs to be in a climate-controlled environment” with a “sustained
temperature and moisture level.” Id. at 94:25, 95:1-2.

•

If engine components are exposed to coolant, over time the exposure will “rust and
deteriorate the metals” and cause the engine to “seiz[e] up and create corrosion in the
cylinders.” Id. at 202:15-16; 205:19-22.

•

Four valves on the engine had “rust and degradation of the metal,” likely from exposure
to water, humidity, or moisture. Id. at 219:18-20.

•

The bottom side of a cylinder head “had been impeded with moisture.” Id. at 221:12.

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Defendants respond by pointing to the following portions of Carpenter’s testimony:
•

He could not “break down repair costs necessary as a result of Jeff’s Resurrections’
actions or inactions versus those necessary as a result of other reasons, such as age.”
Dkt. 58-10, Carpenter Tr. at 66:19-24.

•

“Somewhere along the line, there was – seems to be engine failure. What caused it,
who caused it, who was negligent, I do not know.” Id. at 72:18-20.

•

Although the engine “corrosion was caused by water being in the cylinder,” Carpenter
did not have an opinion on when water entered the cylinder or whether it was caused
by Defendants. Id. at 91:5-14.

•

He did not know whether Jeff’s Resurrections caused defects to the exterior paint or
interior components. Id. at 98:7-12, 103:16-20.

•

When asked whether any component of the vehicle “was damaged by Jeff’s
Resurrections as a result of their workmanship,” Carpenter testified: “That, I don’t
know. That would be an opinionated judgmental observation. There’s clearly damage
on the car; but how it happened or who cause it, I do not know.” Id. at 119:20-120:2.

Plaintiff was required to provide expert testimony as to the cause of the damage. Proof of
causation cannot turn on speculation or conjecture. Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex.
1996); see also Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006) (affirming trial
court’s grant of summary judgment for defendant where expert testimony on causation was
speculative). Carpenter testified that he cannot form an opinion whether Defendants caused the
damage to the Vehicle and, if they did, the extent of the damage for which they are responsible.
Dkt. 58-10, Carpenter Tr. at 66:19-24, 72:18-20. He testified that Jeff’s Resurrections lacked
climate control, but did not identify this as the cause of damage to the Vehicle or address possible
alternative causes. This expert testimony is insufficient to defeat to defeat summary judgment. See
Michaels v. Avitech, Inc., 202 F.3d 746, 752 (5th Cir. 2000) (affirming grant of summary judgment
for defendant because expert’s testimony making “no attempt” to rule out other causes was not
“significantly probative”); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 559
(Tex. 1995) (stating that expert’s “failure to rule out other causes of the damage renders his opinion
little more than speculation”).
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Because Defendants have identified Plaintiff’s lack of evidence on an essential element and he
has failed to come forward with sufficient evidence of causation, the Court finds that Plaintiff has
not established a genuine issue of material fact. See id. at 754 (“Because none of the plaintiff’s
inferences of [defendant’s] negligence are sufficient to support finding of negligence, they do not
suffice to create a genuine issue of material fact that would preclude summary judgment.”).
Accordingly, the undersigned Magistrate Judge recommends that the District Court grant summary
judgment for Defendants on Plaintiff’s negligence claim.3
B. Breach of Contract
Next, Plaintiff alleges that Defendants breached the contract by damaging the Vehicle and
failing to return two of its parts: the engine control unit and the belly pan. Plaintiff further alleges
that he received no value for the $40,000 he paid Defendants under the contract.
Defendants argue that Plaintiff presents no evidence of breach of contract or damages.
Defendants also argue that Snyder cannot be held personally liable because he acted within the
course and scope of his employment.
In his breach of contract claim, Plaintiff does not differentiate his allegations against Snyder
and Jeff’s Resurrections. Nor does Plaintiff address Defendants’ argument that Snyder cannot be
held personally liable for breach of contract, responding only that Snyder can be held personally
liable for his tortious conduct. Dkt. 60 at 16. When a party fails to pursue a claim or defense beyond
its initial pleading, the claim is deemed abandoned or waived. See Black v. North Panola Sch.
Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (holding that plaintiff abandoned claim when she
failed to defend it in response to motion to dismiss); Arias v. Wells Fargo Bank, N.A., 2019 WL

3

Because Plaintiff failed to raise a genuine issue of material fact on his negligence claim, the Court need
not address whether Snyder can be held personally liable for any tortious conduct.

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2770160, at *2 (N.D. Tex. July 2, 2019) (“When a plaintiff fails to defend a claim in response to
a motion to dismiss or summary judgment motion, the claim is deemed abandoned.”). Therefore,
to the extent that Plaintiff seeks to hold Snyder individually liable on his breach of contract claim,
Plaintiff has waived that claim, and the Court considers Plaintiff’s breach of contract claim against
Jeff’s Resurrections only.
To prevail on a breach of contract claim, a plaintiff must prove: (1) the existence of a valid
contract; (2) the plaintiff performed or tendered performance; (3) the defendant breached the
contract; and (4) the plaintiff was damaged as a result. Vizza Wash, LP v. Nationwide Mut. Ins.
Co., 496 F. Supp. 3d 1029, 1038 (W.D. Tex. 2020). The causal standard for breach of contract is
similar to, but not the same as, proximate cause for a negligence claim. Cunningham v. Blue Cross
Blue Shield of Tex., No. 2-06-363-CV, 2008 WL 467399, at *8 (Tex. App.—Fort Worth Feb. 21,
2008, pet. denied). Actual damages are recoverable for breach of contract only if a plaintiff shows
that the injury complained of was the natural, probable, and foreseeable consequence of the
defendant’s breach. Id. (citing Mead v. Johnson Grp., 615 S.W.2d 685, 687 (Tex. 1981)).
1. Damage to the Vehicle
Plaintiff alleges that Jeff’s Resurrections breached the parties’ contract by failing to safeguard
the Vehicle and perform the agreed services. But Plaintiff submits no competent summary
judgment evidence for the third and fourth elements of his breach of contract claim: breach and
causation.
For the element of breach, Plaintiff identifies no acts that constitute a breach of the contract;
nor does he identify any work Jeff’s Resurrections failed to perform. See Gonzalez v. Magana,
No. 03-14-00387-CV, 2015 WL 4997868, at *2 (Tex. App.—Austin Aug. 18, 2015, pet. denied)
(granting summary judgment where plaintiff offered no evidence how defendant failed to provide
services required by alleged oral contract). Plaintiff’s expert testified that, in his opinion, Plaintiff
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did not receive $39,904 worth of work on the Vehicle based on “the state of the car when . . . we
picked it up.” Dkt. 60-8, Carpenter Tr. at 196:8-19. Plaintiff offers no other evidence explaining
the basis of Carpenter’s assessment, such as what services Jeff’s Resurrections failed to perform
or whether the services rendered failed to meet a standard required by the contract. Plaintiff
therefore offers no evidence of Defendants’ breach.
As for the fourth element, causation, Carpenter did not opine on the cause of the damage to the
Vehicle. To raise a genuine issue of material fact, Plaintiff must provide some evidence that his
injury was the natural, probable, and foreseeable consequence of the Jeff’s Resurrections’ breach.
Plaintiff has not done so. For these reasons, Plaintiff has presented no evidence raising a genuine
issue of material fact as to whether Defendants breached the contract by damaging the Vehicle,
and the Court recommends that the District Court grant summary judgment to Defendant Jeff’s
Resurrections on this claim.
2. Failure to Return Parts of the Vehicle
Plaintiff supports his breach of contract claim based on Jeff’s Resurrections’ failure to return
the Vehicle’s electric control unit and belly pan with his deposition testimony. Plaintiff testified
that, on the day Jeff’s Resurrections took possession of the Vehicle, one of Plaintiff’s sons brought
the belly pan to Jeff’s Resurrections’ trailer and Snyder strapped it into the trailer. Bernstein Tr. 602 at 39:18-25. Plaintiff also provides an inventory of parts made before he retook possession of
the Vehicle. Dkt. 60-12 (Inventory of XJ 220 Parts). The inventory does not include the belly pan.
Defendants respond by pointing to Plaintiff’s testimony that the Vehicle’s previous belly pan
was lost and Plaintiff did not personally handle the purchase of the replacement pan. Id. at 41:1923, 42:16-17.
While a court may consider the sufficiency of a plaintiff’s evidence on summary judgment, it
may not weigh the evidence or make credibility determinations. See Boudreaux v. Swift Transp.
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Co., 402 F.3d 536, 544 (5th Cir. 2005) (stating that the court may decide a motion for summary
judgment based on weakness of a plaintiff’s evidence but may not discount the plaintiff’s
testimony based on credibility concerns). The Court finds Plaintiff’s testimony sufficient to create
a genuine issue of material fact as to whether Jeff’s Resurrections breached the contract by failing
to return the belly pan.
Defendants’ contention that there is no credible evidence supporting the damages element does
not defeat this claim. A property owner is qualified to testify to the value of his property even if
he is not an expert and would not be qualified to testify to the value of other property. Reid Rd.
Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 852-53 (Tex. 2011).
Plaintiff has testified that he purchased the belly pan for $15,000 to $20,000 before Defendants
took possession of the Vehicle. Dkt. 60-2, Bernstein Tr. at 41:12-16.
Plaintiff offers no evidence, however, that Jeff’s Resurrections retained possession of the
engine control unit. Defendants point to Plaintiff’s inventory of parts, which shows that the engine
control unit was located “in box in passenger floorboard” on February 18, 2020, just before
Plaintiff retook possession of the Vehicle. Dkt. 60-12 at 1, 20. Because Plaintiff offers no evidence
that Jeff’s Resurrections is still in possession of the engine control unit, he has not raised a genuine
issue of material fact that Defendants breached the parties’ contract by failing to return the engine
control unit.
In sum, for the foregoing reasons, the undersigned Magistrate Judge recommends that the
District Court grant summary judgment to Defendants on Plaintiff’s breach of contract claim for
failure to return the engine control unit, but deny summary judgment on Plaintiff’s breach of
contract claim for failure to return the belly pan.

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C. Replevin
Finally, Defendants contend that Plaintiff’s replevin claim fails because Plaintiff offers no
evidence that they still have possession of the engine control unit or the belly pan. Plaintiff does
not address his claim for replevin in his response and therefore has abandoned it. See Black, 461
F.3d at 588 n.1; Arias, 2019 WL 2770160, at *2.
Even if Plaintiff had not abandoned his replevin claim, it would fail as a matter of law. Rule 64
makes replevin and other prejudgment remedies available “under the law of the state where the
court is located.” The Court therefore construes Plaintiff’s claim for replevin pursuant to Arizona
law (A.R.S. §§ 12-1301 through 12-1314) under Texas law, which provides that “replevin is an
action for the repossession of personal property wrongfully taken or detained by the defendant,
whereby the plaintiff gives security for and holds the property until the court decides who owns
it.” Acord v. Young Again Prods., Inc., No. H-11-3591, 2013 WL 754144, at *14 (S.D. Tex. Feb. 7,
2013) (quoting Simmonds v. TDCJ, 2010 WL 654498, at *8 (Tex. App.—Waco 2010, no pet.)),
R. & R. adopted, No. H-11-3591, 2013 WL 754140 (S.D. Tex. Feb. 27, 2013).
Defendants have returned the Vehicle to Plaintiff, see Dkt. 60 at 8-9, and there is no dispute
over who owns the missing parts. Nor does the record show that Plaintiff complied with the
procedure for issuance of a writ of replevin. See id. (stating that a writ of replevin “requires the
Plaintiffs to give security for the property whose return they seek, and such a cause of action is not
sustainable in the absence of security”) (quoting Simmonds, 2010 WL 654498, at * 8). For these
additional reasons, Plaintiff’s replevin claim fails as a matter of law, and the Court recommends
that the District Court grant Defendants’ motion for summary judgment as to that claim.

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Case 1:20-cv-01186-RP Document 65 Filed 01/18/23 Page 16 of 16

IV. Recommendation
This Magistrate Judge RECOMMENDS that the District Court GRANT IN PART AND
DENY IN PART Defendants Jeffrey Snyder and Jeff’s Resurrections, LLC’s Motion for
Summary Judgment (Dkt. 58). The Court recommends that the District Court DENY the Motion
for Summary Judgment as to the breach of contract claim against Jeff’s Resurrections concerning
failure to return the belly pan, GRANT summary judgment to Defendants on all of Plaintiff’s other
claims, and DISMISS Plaintiff’s remaining claims with prejudice.
IT IS ORDERED that the Clerk REMOVE this case from the Magistrate Court’s docket and
RETURN it to the docket of the Honorable Robert Pitman.
V.

Warnings

The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. See Battle v.
United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written
objections to the proposed findings and recommendations contained in this Report within fourteen
(14) days after the party is served with a copy of the Report shall bar that party from de novo
review by the District Court of the proposed findings and recommendations in the Report and,
except on grounds of plain error, shall bar the party from appellate review of unobjected-to
proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C.
§ 636(b)(1); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass’n,
79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED on January 18, 2023.

SUSAN HIGHTOWER
UNITED STATES MAGISTRATE JUDGE
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