Hudnall v. Smith ( 2023 )

Case: 23-50143 Document: 00516973031 Page: 1 Date Filed: 11/17/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-50143
Summary Calendar FILED
____________ November 17, 2023
Lyle W. Cayce
Robert K. Hudnall; Sharon Elias Hudnall, Clerk
Plaintiffs—Appellants,
versus
Ty Smith, Individually and as agent for Smith and Ramirez Restoration,
L.L.C.; Alejandro C. Ramirez, Individually and agent for Smith and
Ramirez Restoration L.L.C.; Smith and Ramirez Restoration,
L.L.C.,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:21-CV-106
______________________________
Before Dennis, Engelhardt, and Wilson, Circuit Judges.
Per Curiam: *
Robert K. Hudnall and Sharon Elias Hudnall filed suit against Ty
Smith, Alejandro C. Ramirez, and Smith and Ramirez Restoration, L.L.C.
(collectively, the Defendants), asserting claims of breach of contract, fraud,
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50143 Document: 00516973031 Page: 2 Date Filed: 11/17/2023
No. 23-50143
fraudulent inducement, fraudulent misrepresentation, and promissory
estoppel (collectively, the “Contract Claims”) and claims under the federal
Racketeer Influenced and Corrupt Organizations Act (RICO). The district
court dismissed the Hudnalls’ Contract Claims for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and
dismissed their RICO claims pursuant to Federal Rule of Civil Procedure
12(c). The Hudnalls now appeal.
As an initial matter, we observe that we have jurisdiction over this
appeal, as the Hudnalls filed a document clearly evincing their intent to
appeal within the time period prescribed by Federal Rule of Appellate
Procedure 4(a)(1)(A). See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).
We also disagree with the Hudnalls’ assertion that their complaint was
improperly removed to federal court. See Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987); Baldwin v. Sears, Roebuck & Co., 667 F.2d 458, 460 (5th
Cir. 1982).
De novo review applies to a Rule 12(b)(1) dismissal, and the district
court properly dismissed the Contract Claims for lack of subject matter
jurisdiction because they were subject to binding arbitration. See Gilbert v.
Donahoe, 751 F.3d 303, 306-07 (5th Cir. 2014). However, we modify the
judgment to reflect that the Contract Claims are dismissed without prejudice.
See Csorba v. Varo, Inc., 58 F.3d 636, 636 n.2 (5th Cir. 1995) (unpublished but
precedential per 5th Cir. R. 47.5.3).
We also review Rule 12(c) dismissals de novo, using the same standard
that applies to a Rule 12(b)(6) motion to dismiss. Q Clothier New Orleans,
L.L.C. v. Twin City Fire Ins. Co., 29 F.4th 252, 256 (5th Cir. 2022). The
district court did not err in dismissing the Hudnalls’ RICO claims, as, at a
minimum, they have failed to plead the elements of the asserted predicate
offenses as required to state a RICO claim. See Elliott v. Foufas, 867 F.2d 877,
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No. 23-50143
880 (5th Cir. 1989). We also disagree with the Hudnalls’ assertion that the
district court reversibly erred in failing to conduct a hearing on their claims,
as they have not explained what additional information they would have
presented at a hearing that was not presented in their multiple filings in the
district court. See Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009).
The Hudnalls have abandoned, by failing to adequately brief, any argument
that the failure to hold hearings violated the Americans with Disabilities Act
and the Americans with Disabilities Amendments Act. See Yohey v. Collins,
985 F.2d 222, 225 (5th Cir. 1993).
In light of the foregoing, we MODIFY the district court’s judgment
to reflect dismissal without prejudice of the Hudnalls’ claims of breach of
contract, fraud, fraudulent inducement, fraudulent misrepresentation, and
promissory estoppel against the Defendants. We AFFIRM AS
MODIFIED.
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