Opinion
NO. 01-16-00927-CV
10-31-2017
MASSOOD DANESH PAJOOH, Appellant v. ROBERT G. MILLER, WILLIAM C. FEREBEE, O'DONNELL, FEREBEE, MEDLEY & FRAZER PC, ROYAL WEST INVESTMENT LLC, SERIES E, AND SHAWN SHAHBAZI, Appellees
On Appeal from the 129th District Court Harris County, Texas
Trial Court Case No. 2015-64202
MEMORANDUM OPINION
Appellant Massood Danesh Pajooh is appealing the trial court's order granting summary judgment in favor of appellees, Robert G. Miller, William C. Ferebee, O'Donnell, Ferebee, Medley & Frazer PC, Royal West Investment LLC, Series E (Royal West), and Shawn Shahbazi, and imposing sanctions against Pajooh. In five issues, Pajooh argues that the trial court abused its discretion by: (1) denying Pajooh's motion for continuance of the summary judgment hearing; (2) granting appellees' motion for summary judgment; (3) failing to comply with Rule 13's requirements to state the particulars of good cause in its sanctions order; (4) awarding appellees $11,000 in attorney's fees as a sanction; and (5) denying Pajooh's motion for new trial.
O'Donnell, Ferebee, Medley & Frazer PC is now known as O'Donnell, Ferebee & Frazer PC.
We affirm the trial court's granting of summary judgment in appellees' favor, but reverse the sanctions order against Pajooh and render judgment in Pajooh's favor on this point.
Background
This appeal is the latest in a series of related legal disputes involving a 2012 Tarrant County judgment against appellant Pajooh and U.S. Capital Investments, LLC in favor of appellee Royal West, and Royal West and its owner Shawn Shahbazi's attempts to collect on that judgment. Miller and Ferebee and their law firm, O'Donnell, Ferebee, Medley & Frazer PC, represented Royal West and Shahbazi in their post-judgment proceedings to collect on the 2012 judgment.
The details of these suits, which are extensively addressed in several appellate court opinions, will not be discussed here unless they are necessary for the disposition of this appeal. See generally Pajooh v. Royal W. Inv. LLC, Series E, 518 S.W.3d 557 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (receivership and turnover order); Cty. Inv., LP v. Royal W. Inv., LLC, 513 S.W.3d 575 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (lis pendens); U.S. Capital Invs., LLC v. Shahbazi, No. 02-12-00417-CV, 2014 WL 1713464 (Tex. App.—Fort Worth May 1, 2014, no pet.) (mem. op.).
On October 27, 2015, Pajooh filed suit against appellees for fraud and civil conspiracy based on their conduct with respect to Royal West and Shahbazi's numerous attempts to collect on the 2012 judgment.
Pajooh also asserted other causes of action against appellees, but he withdrew those claims during the summary judgment hearing.
Appellees filed a motion for traditional and no-evidence summary judgment. Appellees argued that they were entitled to a no-evidence summary judgment on Pajooh's fraud and conspiracy to commit fraud claims because Pajooh had no evidence supporting any elements of his fraud claim, and no evidence appellees had specific intent to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means, namely fraud, or damages, with respect to his conspiracy claims.
Pajooh filed a timely response, and requested a continuance in order to secure additional evidence, namely forthcoming appellate court opinions that he believed would confirm the wrongful nature of appellees' conduct, and, therefore provide evidence that he needed to support his claims that appellees conspired to commit fraud.
After a hearing, the trial court denied Pajooh's request for a continuance and granted appellees' motion for summary judgment without specifying its reasons.
Pro Se Litigants
Pajooh is representing himself in this case. Although we must liberally construe pro se pleadings and briefs, we nevertheless hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). A pro se litigant is required to properly present his case to both the trial and appellate courts. Valadez, 238 S.W.3d at 845. Otherwise, pro se litigants would benefit from an unfair advantage over those parties who are represented by counsel. See id. Therefore, we do not make allowances or apply different standards when a case is presented by a litigant acting without the advice of counsel. See id.
Rule 38.1 of the Texas Rules of Appellate Procedure requires an appellant's brief to "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i). A brief that fails to comply with these requirements waives the complained-of error on appeal. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284-85 (Tex. 1994) (recognizing longstanding rule that error may be waived through inadequate briefing).
Summary Judgment
In his second issue, Pajooh contends: "The trial court failed to evaluate the evidence and failed to recognize fact issues in granting Appellees' motion for summary judgment because as a matter of law there were numerous material issues of facts in dispute and they were not legally sufficient to grant summary judgment." Appellees respond that the trial court's judgment must be affirmed because Pajooh is not challenging the trial court's granting of their traditional motion for summary judgment.
We review a trial court's summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). When there are multiple grounds for summary judgment, and the order does not specify the ground on which the summary judgment was rendered, the appealing party must negate all grounds on appeal. Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (citing State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993)). If summary judgment may have been rendered, properly or improperly, on a ground not challenged on appeal, the judgment must be affirmed. Id.
Appellees filed a traditional motion for summary judgment based on res judicata, and a no-evidence motion in which they argued that Pajooh had no evidence supporting any elements of his fraud claim, and no evidence of specific intent or damages, with respect to his conspiracy claims. The trial court's order did not specify whether it was granting the traditional motion, the no-evidence motion, or both.
After setting forth the appropriate standard of review in his brief, Pajooh cites to his affidavit, which he attached to his summary judgment response, and argues: "Appellant submitted affidavit of several credible witnesses, including his own affidavit demonstrated that Appellant's complaint setting out the facts of the case; thus, the evidence of the factual background of the case is the sworn allegations in Appellant's petition and summary judgment responses." This is the entirety of Pajooh's briefing on his second issue. Even liberally construed, Pajooh's brief does not challenge the trial court's granting of appellees' traditional motion for summary judgment on the ground of res judicata. Because the trial court may have granted summary judgment on res judicata grounds, and Pajooh does not challenge this ground on appeal, we affirm the trial court's summary judgment granted in appellees' favor. See Ellis, 68 S.W.3d at 898; Bynum v. Prudential Residential Servs., Ltd. P'ship, 129 S.W.3d 781, 795 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
We overrule Pajooh's second issue.
Motion for Continuance
In his first issue, Pajooh argues that the trial court abused its discretion when it denied his motion for continuance because he needed additional time to secure forthcoming appellate court opinions that he believed would confirm the wrongful nature of appellees' conduct, and, therefore provide evidence that he needed to support his claims that appellees conspired to commit fraud. Pajooh does not argue that he needed these opinions in order to address appellees' traditional summary judgment motion based on res judicata grounds.
We review a trial court's denial of a motion for continuance for abuse of discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id. Even if a trial court abused its discretion by denying a motion for continuance, the complaining party must demonstrate that he was harmed by the trial court's denial of the motion in order to obtain appellate relief. See Pollitt v. Computer Comforts, Inc., No. 01-13-00785-CV, 2014 WL 7474073, at *3 (Tex. App.—Houston [1st Dist.] Dec. 30, 2014, no pet.) (mem. op.) (citing TEX. R. APP. P. 44.1(a)).
Because we have affirmed the trial court's granting of traditional summary judgment on the ground of res judicata, the trial court's denial of Pajooh's motion for additional time to secure evidence with respect to appellees' no-evidence summary motion would not have harmed Pajooh. See generally Life Forms, Inc. v. Woodlands Operating Co., L.P., 304 S.W.3d 591, 601 (Tex. App.—Beaumont 2010, pet. denied) (holding nonmovant was not harmed by trial court's denial of motion for continuance requesting additional time to conduct discovery with respect to no-evidence summary judgment motion because trial court granted summary judgment on traditional grounds).
We overrule Pajooh's first issue.
Rule 13
In his third issue, Pajooh argues that the trial court abused its discretion because its sanctions order does not make particularized findings of good cause justifying the imposition of sanctions in this case, as required by Texas Rule of Civil Procedure 13.
A. Standard of Review
We review a trial court's decision to impose sanctions under an abuse of discretion standard. Ball v. Rao, 48 S.W.3d 332, 338 (Tex. App.—Fort Worth 2001, pet. denied).
A trial court may impose sanctions pursuant to Rule 13 if a pleading is groundless and brought in bad faith or groundless and brought for the purpose of harassment. See TEX. R. CIV. P. 13; Thielemann v. Kethan, 371 S.W.3d 286, 294 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). A claim is groundless for purposes of Rule 13 if it has "no basis in law or fact" and the claim is "not warranted by good faith argument for the extension, modification, or reversal of existing law." TEX. R. CIV. P. 13.
Rule 13 further provides, "No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order." Id. A trial court is "not at liberty to ignore the clear and unambiguous language of this rule," and, therefore, when the trial court imposes Rule 13 sanctions, it is "required to make particularized findings of good cause justifying the sanctions." Tex.-Ohio Gas, Inc. v. Mecom, 28 S.W.3d 129, 135 (Tex. App.—Texarkana 2000, no pet.). The trial court abuses its discretion when it fails to comply with this "clear directive." Id.
A complaining party waives the particularity requirement of Rule 13 by failing to make a timely complaint to the trial court. Id. at 135-36; see also Wilner v. Quijano, No. 01-11-00322-CV, 2012 WL 5311147, at *6-7 (Tex. App.—Houston [1st Dist.] Oct. 25, 2012, no pet.) (mem. op.). Generally, to preserve error for appeal, a party must timely present its objection to the trial court with sufficient specificity. See TEX. R. APP. P. 33.1.
B. Analysis
1. Briefing Waiver
Appellees argue that Pajooh has waived this issue due to briefing error. Specifically, appellees argue:
Pajooh claims he timely objected to the trial court's failure to include particulars in the sanctions order and cites "RR 38 lines 22-24." The record reference does not support Pajooh's claims because Pajooh
merely stated, "I'm going to object to the ruling." Failure to cite to the record waives appeal. Harkins, 999 S.W.2d at 573.Rule 38.1 of the Texas Rules of Appellate Procedure requires an appellant's brief to "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i). A brief that fails to comply with these requirements waives the complained-of error on appeal. See Fredonia State Bank, 881 S.W.2d at 284-85 (recognizing longstanding rule that error may be waived through inadequate briefing). Pajooh's brief, which contains numerous record cites, legal authority, and analysis supporting his particularity challenge based on Rule 13, complies with the appellate rules. See TEX. R. APP. P. 38.see also TEX. R. APP. P. 38.9 (stating that briefing rules are to be liberally construed and substantial compliance with rules is sufficient).
2. Preservation of Error
After the trial court found that Pajooh's allegations were groundless and granted appellees' motion for sanctions during the hearing on the motion, Pajooh informed the court that he needed to know the basis for the court's finding that his claims were groundless and brought in bad faith. In his motion for new trial, Pajooh argued that the trial court committed reversible error by failing to comply with Rule 13's particularity requirement. Because he raised a challenge to the trial court's sanctions order based on the lack of particularity in a post-judgment motion and requested fact findings supporting the trial court's conclusion that his claims were groundless and brought in bad faith, we conclude that Pajooh has preserved this issue for our review. Cf. Wilner, 2012 WL 5311147, at *7 (holding party failed to preserve complaint regarding particularity requirement of Rule 13 because party "failed to raise any challenge to the sanctions order before the trial court, either at the trial setting at which the court imposed the sanctions or in a post-judgment motion").
3. Rule 13's Particularity Requirement
The sanctions order states:
The Court held an evidentiary hearing and based on the evidence presented in the testimony of the witnesses found that the allegations of [Pajooh's] petition have no evidentiary support, with respect to liability and damages, and that this case is groundless and filed in bad faith and for the purposes of harassment.The trial court's order recites the conclusions that it was required to reach before assessing Rule 13 sanctions, i.e., that Pajooh's "case is groundless and filed in bad faith and for the purposes of harassment," but it does not identify the acts or omissions on which it based these determinations. "Such conclusory 'findings' do not satisfy Rule 13's particularity requirement." Graves v. Diehl, No. 01-00-00412-CV, 2006 WL 1699527, at *4 (Tex. App.—Houston [1st Dist.] June 22, 2006, pet. denied) (holding trial court's conclusory "findings" in order, which merely tracked language of rule, insufficient to satisfy Rule 13's particularity requirement); see also Overman v. Baker, 26 S.W.3d 506, 511-12 (Tex. App.—Tyler 2000, no pet.) (holding that order reciting Rule 13 requirements, stating that allegations had no evidentiary support and were not likely to have support after reasonable discovery, and that "good cause exists for the imposition of sanctions," failed to state specific acts or omissions on which sanctions were based and failed to satisfy particularity requirement of Rule 13). Because the trial court's order does not comply with Rule 13's particularity requirement, we reverse the sanctions order and render judgment in Pajooh's favor.
We sustain Pajooh's third issue.
Attorney's Fees
In his fourth issue, Pajooh argues that the trial court abused its discretion by awarding appellees $11,000 in attorney's fees as a sanction because there is no evidence supporting the reasonableness of such fees. Because we reversed the order awarding the fees as a sanction, we do not need to reach Pajooh's challenge to the sufficiency of the evidence supporting such fees.
The trial court's order does not award appellees conditional appellate attorney's, but reserves such fees as a possible sanction in the event the sanctions order is challenged and affirmed on appeal.
Motion for New Trial
In his fifth issue, Pajooh argues on appeal that the trial court abused its discretion by denying his motion for new trial in light of newly discovered evidence, i.e., appellate court opinions in related cases. Although he asserted various arguments in support of his motion, Pajooh did not argue to the trial court that it should grant him a new trial based on newly discovered evidence. In order to preserve error for appellate review, a party's argument on appeal must comport with its argument in the trial court. See Ferrara v. Moore, 318 S.W.3d 487, 496 (Tex. App.—Texarkana 2010, pet. denied). Because Pajooh's appellate argument does not comport with the argument he presented in his motion for new trial, Pajooh's fifth issue has not been preserved for appellate review. See id.
We overrule Pajooh's fifth issue.
Conclusion
We affirm the trial court's granting of summary judgment in appellees' favor, but reverse the sanctions order against Pajooh and render judgment in Pajooh's favor on this point.
Russell Lloyd
Justice Panel consists of Justices Higley, Massengale and Lloyd.