Allen et al v. Freedom Forever Texas LLC et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
MATTHEW ALLEN, et al.,
Plaintiffs.
V.
FREEDOM FOREVER TEXAS LLC,
et al.,
Defendants.
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CIVIL ACTION NO. 3:25-cv-00164
MEMORANDUM AND RECOMMENDATION
Pending before me is Defendant Vivint, LLC’s motion to dismiss Plaintiffs’
First Amended Complaint. See Dkt. 24. Having reviewed the briefing, the record,
and the applicable law, I recommend that the motion be granted in part and denied
in part.
BACKGROUND
Plaintiffs are Matthew and Rachel Allen. Defendants Freedom Forever
Texas, LLC and Vivint sell solar panel systems door to door to homeowners in
Texas. Defendant Solar Mosaic, LLC is a third-party financing company that
provides financing options to customers purchasing solar panel systems from
Vivint and Freedom Forever.
According to the First Amended Complaint, Plaintiffs purchased a solar
panel system for their home. Plaintiffs allege that a Vivint salesperson, Devon
Tyerman, represented to Plaintiffs that purchasing the solar panel system would
entitle them to a tax credit, generate excess energy that could be sold back to power
companies, and result in lower electricity bills. Tyerman also allegedly told
Plaintiffs that they would not need a backup battery during power outages.
Plaintiffs claim that all these representations were false.
On April 29, 2025, Plaintiffs instituted this lawsuit in the 122nd Judicial
District of Galveston County, Texas, asserting various claims related to the
United States District Court
Southern District of Texas
ENTERED
February 10, 2026
Nathan Ochsner, Clerk
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purchase and installation of the solar panel system. The case was timely removed
to federal court. Plaintiffs added Vivint to this lawsuit in the First Amended
Complaint, which was filed on September 22, 2025. In the First Amended
Complaint, Plaintiffs bring six causes of action against Vivint: (1) breach of
contract; 	(2) 	promissory 	estoppel; 	(3) Texas 	Deceptive 	Trade 	Practices 	Act
(“DTPA”) violations; (4) fraud; (5) negligent misrepresentation; and (6) fraudulent
lien.
Vivint moves to dismiss all of Plaintiffs’ claims, asserting that Plaintiffs fail
to state a claim that would entitle them to relief.
LEGAL STANDARD
A defendant may move to dismiss a complaint when a plaintiff fails “to state
a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
Conversely, “when the allegations in a complaint, however true, could not raise a
claim of entitlement to relief, this basic deficiency should be exposed at the point
of 	minimum 	expenditure 	of 	time 	and 	money 	by 	the 	parties 	and 	the
court.” Twombly, 550 U.S. at 558 (cleaned up).
When evaluating a Rule 12(b)(6) motion, I accept “all well-pleaded facts as
true and view[] those facts in the light most favorable to the plaintiff.” Cummings
v. Premier Rehab Keller, P.L.L.C., 948 F.3d 673, 675 (5th Cir. 2020) (quotation
omitted). 	I 	“do 	not, 	however, 	accept 	as 	true 	legal 	conclusions, 	conclusory
statements, or naked assertions devoid of further factual enhancement.” Benfield
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v. Magee, 945 F.3d 333, 336–37 (5th Cir. 2019) (cleaned up). “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678.
ANALYSIS
A. 	BREACH OF CONTRACT AND F RAUDULENT L IEN CLAIMS
Plaintiffs agree to withdraw their breach of contract and fraudulent lien
claims against Vivint. See Dkt. 25 at 2–3. Accordingly, I recommend that Vivint’s
motion to dismiss Plaintiffs’ breach of contract and fraudulent lien claims be
granted.
B. 	PROMISSORY ESTOPPEL CLAIM
“Under Texas law, ‘[t]he requisites of promissory estoppel are: (1) a promise,
(2) foreseeability of reliance thereon by the promisor, and (3) substantial reliance
by the promisee to his detriment.’” MetroplexCore, L.L.C. v. Parsons Transp., Inc.,
743 F.3d 964, 977 (5th Cir. 2014) (quoting English v. Fischer, 660 S.W.2d 521, 524
(Tex. 1983)).
Vivint argues that Plaintiffs’ promissory estoppel claim should be dismissed
because “Plaintiffs have not specified any promise that Vivint has made to
Plaintiffs.” Dkt. 24 at 8. Vivint is mistaken.
Plaintiffs allege in the operative complaint that Vivint’s agent, Tyerman, told
Plaintiffs: (1) they “would not need a backup battery . . . during an outage”; (2) they
“would receive a tax credit which would allow them to continue to pay lower
monthly payments”; and (3) that “electricity rates . . . would be lower than their
then current electricity rates.” Dkt. 18 at 3–4. These are all specific promises
allegedly made by Vivint’s agent to Plaintiffs.
Vivint insists for the first time in its reply brief that Plaintiffs’ alleged
representations “were expressly and unambiguously disclaimed in the Freedom
Forever Contract, which Tyerman signed and gave to Plaintiffs at the time of
execution.” Dkt. 26 at 9. But the Freedom Forever Contract is not before me. Vivint
claims that the Freedom Forever Contract is attached to its reply brief. See Dkt. 26
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at 8 n.1. It is not attached. Vivint may later attach the Freedom Forever Contract
to a motion for summary judgment, and I will consider Vivint’s argument at that
time. At present, however, I must recommend that Vivint’s motion to dismiss
Plaintiffs’ promissory estoppel claim be denied.
C. 	DTPA AND NEGLIGENT M ISREPRESENTATION CLAIMS
Vivint next argues that the DTPA and negligent misrepresentation claims
should 	be 	dismissed 	because 	they 	are 	barred 	by 	the 	applicable 	statute 	of
limitations. See Dkt. 24 at 11.
Plaintiffs’ DTPA claims are subject to a two-year limitations period that
commences at the time the misrepresentation is made or after the plaintiff
“discovered or in the exercise of reasonable diligence should have discovered the
occurrence of the [unlawful act].” Tex. Bus. & Com. Code § 17.565. Negligent
misrepresentation claims are also subject to a two-year statute of limitations. See
Tex. Civ. Prac. & Rem. Code § 16.003(a); Smith Int’l, Inc. v. Egle Grp., LLC, 490
F.3d 	380, 	386 	(5th 	Cir. 	2007). 	The 	limitations 	period 	for 	negligent
misrepresentation claims begins to run “when facts come into existence that
authorize a claimant to seek a judicial remedy.” Exxon Corp. v. Emerald Oil & Gas
Co., 348 S.W.3d 194, 202 (Tex. 2011).
The standard for dismissing claims at the motion to dismiss stage on the
basis of the statute of limitations is high. See Vela v. Compton, No. 24-40302, 2024
WL 4891786, at *2 (5th Cir. Nov. 26, 2024) (“Rule 12(b)(6) dismissal under a
statute of limitations is proper only when the complaint makes plain that the claim
is time barred and raises no basis for tolling.”). In this case, the face of the First
Amended Complaint does not conclusively establish that the statute of limitations
has run. Indeed, the 11-page First Amended Complaint does not contain a single
date from which I could determine if the statute of limitations has expired.
Vivint attaches to its motion to dismiss a loan agreement, which reflects a
May 4, 2023 date. Vivint argues that “[i]f the allegations made by Plaintiffs in their
complaint are taken to be true, then it is beyond dispute that these representations
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were made prior to or on May 4, 2023.” Dkt. 24 at 13. Because Plaintiffs did not
add Vivint to the case until they filed their First Amended Complaint on September
22, 2025, Vivint avers that Plaintiffs’ DTPA and negligent misrepresentation
claims are time-barred. The problem with Vivint’s argument is that even if the
alleged 	misrepresentations 	were 	made 	before 	May 	4, 	2023, 	the 	statute 	of
limitations did not begin to run until the date Plaintiffs should have discovered the
falsity of Vivint’s alleged misrepresentations. A review of the First Amended
Complaint sheds no light whatsoever as to when Plaintiffs should have discovered
the falsity of the statements at issue. Viewed in the light most favorable to
Plaintiffs, I cannot say that Plaintiffs’ DTPA and negligent misrepresentation
claims are unquestionably time-barred. The better course of action is to revisit
Vivint’s 	statute 	of 	limitations 	argument 	at 	the 	summary 	judgment 	stage.
Accordingly, I recommend that Vivint’s motion to dismiss Plaintiffs’ DTPA and
negligent misrepresentation claims be denied.
D. 	F RAUD CLAIM
Finally, Vivint argues that Plaintiffs fail to allege fraud with particularity, as
required by Rule 9(b), and that “Vivint simply does not have adequate notice of the
nature and grounds of Plaintiffs’ fraud . . . claim.” Id. at 11.
Fraud allegations bear a heightened pleading standard: a party must state
with particularity the circumstances constituting fraud. See Fed. R. Civ. P. 9(b).
This means that the party alleging fraud must “specify the statements contended
to be fraudulent, identify the speaker, state when and where the statements were
made, and explain why the statements were fraudulent.” Williams v. WMX Techs.,
Inc., 112 F.3d 175, 177 (5th Cir. 1997). In short, Rule 9(b) requires that a complaint
detail “the who, what, when, and where before access to the discovery process is
granted.” Hart v. Bayer Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000) (cleaned up).
The Fifth Circuit has mandated that Rule 9(b)’s heightened-pleading standard be
applied with “bite” and “without apology.” Williams, 112 F.3d at 178.
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After reviewing the First Amended Complaint, I conclude that Plaintiffs have
sufficiently identified the “who” and the “what.” By that, I mean that the operative
complaint outlines a number of representations made by Tyerman that were
allegedly false. What the First Amended Complaint does not include is the “when”
and the “where.” As Vivint correctly observes: “Plaintiffs failed to allege when
Tyerman made these representations and where these representations occurred.”
Dkt. 24 at 10.
This is not a particularly difficult task. For fraud claims to pass muster at the
pleading stage, Plaintiffs must simply specify where the misrepresentations were
made (that is, by phone, email, in person, etc.) and when the misrepresentations
were made (that is, the approximate date of the alleged misrepresentations). I will
give Plaintiffs one more chance to properly allege the “where” and “when” to
support a fraud claim under Rule 9(b). Plaintiffs are given leave to file a Second
Amended Complaint by February 20, 2026. In the meantime, I recommend that
Vivint’s motion to dismiss Plaintiffs’ fraud claim set forth in the First Amended
Complaint be granted.
CONCLUSION
For the reasons discussed above, I recommend that Vivint’s motion to
dismiss Plaintiffs’ claims for breach of contract, fraudulent lien, and fraud be
granted. I recommend Vivint’s motion to dismiss be denied in all other respects.
The 	parties 	have 	14 	days 	from 	service 	of 	this 	Memorandum 	and
Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R.
Civ. P. 72(b)(2). Failure to file timely objections will preclude appellate review of
factual findings and legal conclusions, except for plain error.
SIGNED this 	day of February 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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