An Arlington attorney, Dwain Downing, has changed his mind after threatening to sue Our Place Restaurant in Mansfield, Texas. The incident took place last weekend when Downing ordered a Saturday special – an entrée, two sides and a cup of soup. The soup is considered a “freebie,” kind of like bread. The soup was not included with Downing’s order because the restaurant ran out.
Downing believed the restaurant’s failure to provide the soup fell under a “deceptive practice” provision in the law, and sent a certified demand letter requesting $2.25 in damages and $250 in attorney’s fees (his hourly rate). The owner of the restaurant, Benji Arslanovski posted the attorney’s letter on his Facebook page and within hours, it went viral.
Arslanovski says their menu clearly states the soup comes with the meal “while supplies last.” The attorney felt he was owed a price reduction or a substitution for the soup. Rather than calling the restaurant owner to complain, Downing’s letter stated he would sue if he did not receive a response within 10 days. However, the attorney says he no longer plans to sue after allegedly receiving death threats via social media.
If Mr. Downing ultimately filed a lawsuit on the claims set forth above, does an entity like Our Place Restaurant have any recourse?
In March, 2013, Texas adopted Rule of Civil Procedure 91a which allows a defendant to move to dismiss a case on the grounds that it has no basis in law or fact. The court must award all costs, and reasonable and necessary attorneys’ fees to the party which prevails on the motion to dismiss.
Additionally, by signing a pleading, an attorney or party is representing to the court that the pleading is not groundless, brought in bad faith, or brought for the purposes of harassment. If the court determines that an attorney or party signed a pleading in violation of that rule, the court must impose an appropriate sanction upon the party, the attorney representing the party or both.
So what is the lesson moving forward? As my mom used to say, the world is not Burger King, so it’s not going to be “your way, every day.” Just because you don’t get your way does not mean you have a right to sue. An attorney must carefully evaluate a client’ claims to determine whether or not they have merit and can survive a motion to dismiss.
If you have a legal issue or problem with which you need assistance, The Harris Firm would be more than happy to provide you with a free evaluation of your claim. We can’t provide soup, but we’ll be happy to offer something to drink!
