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Opinion issued January 29, 2009
Court of Appeals
First District of Texas
ALI YAZDCHI, AS INDEPENDENT EXECUTOR OF THE ESTATE OF ABBAS YAZDCHI, AND HABIBOLAH YAZDCHI, Appellants
Trial Court Cause No. 2004-19241
Appellant, Ali Yazdchi, (1) as independent executor of the estate of Abbas Yazdchi, (2) challenges the trial court's order granting summary judgment in favor of appellee, R.P. Cornelius, on Yazdchi's claims against Cornelius for conversion, negligence, breach of contract, breach of fiduciary duty, and legal malpractice, and the trial court's subsequent order dismissing Yazdchi's fraud claim against Cornelius. In five issues, Ali Yazdchi, who proceeds pro se on appeal, contends that the trial court erred in granting Cornelius "summary judgment when there is a genuine dispute on one essential fact" and Cornelius's motion to dismiss Abbas Yazdchi's claim "because [he] was dead and there was nobody to represent him."
Factual and Procedural Background
In their petition, Abbas, Habibolah, and Ahmad Yazdchi alleged that Cornelius had stolen $160,000 from them, and they asserted claims for conversion, negligence, fraud, breach of contract, breach of fiduciary duty, and legal malpractice. Cornelius filed an answer, in which he explained that the Yazdchis' suit arose out of his legal representation of Ali Yazdchi, who is Habibolah's son and Abbas and Ahmad's brother, "in numerous criminal matters that were resolved in November 2000." Cornelius asserted a general denial and a number of affirmative defenses, including limitations, and also filed special exceptions to the Yazdchis' petition.
As reflected by a transcript contained in the clerk's record, at an April 17, 2006 hearing on a motion to withdraw filed by the Yazdchis' former attorney, Michael O'Connor, O'Connor stated that he represented all of the Yazdchis in the suit and wanted to withdraw from further representation. Ali Yazdchi, who was not a named plaintiff in the underlying suit, was the only Yazdchi to appear at the hearing, and, at the hearing, Ali Yazdchi informed the trial court that Abbas Yazdchi had died and that he was acting as the executor of Abbas Yazdchi's estate. O'Connor did not challenge this assertion. Ali Yazdchi, in his alleged capacity as independent executor, then requested that the trial court provide him with additional time, presumably to obtain counsel to represent him in his alleged capacity as independent executor. The trial court granted Ali Yazdchi additional time to arrange for counsel. The trial court specifically advised Ali Yazdchi that it would be to his benefit, and the benefit of all of the Yazdchi plaintiffs, for him to hire new counsel rather than proceed pro se. The trial court explained that it was "bend[ing] over backwards" to give the Yazdchis the opportunity to obtain legal counsel and stated that it would reconsider O'Connor's motion to withdraw on May 15, 2006, at which time the Yazdchis would become unrepresented by counsel if they failed to obtain new counsel. (3) The record reveals that neither Habibolah nor Ahmad Yazdchi appeared at this hearing or any other hearing subsequently held in the trial court.
On May 12, 2006, Cornelius filed a summary judgment motion, challenging all of the Yazdchis' claims. In an affidavit attached to his summary judgment motion, Cornelius testified that from 1985 to 2000 he had represented Ali Yazdchi in "numerous criminal proceedings," he had never met or heard of Ahmad Yazdchi, and, sometime in the early 1990's, he had said hello to Habibolah Yazdchi on two occasions, but had never represented him or entered into a written agreement with him. Cornelius had been introduced to Abbas Yazdchi eighteen years before and, sometime during 1999 to 2000, he had received a telephone call from someone claiming to be Abbas Yazdchi, but he had not represented Abbas Yazdchi or entered into a written agreement with him. Cornelius also presented multiple arguments as to why the Yazdchis' claims failed as a matter of law. Cornelius argued that the conversion, negligence, and legal malpractice claims failed as a matter of law based upon his limitations defense, the fraud claims failed as a matter of law because he had made no representations to the Yazdchis, the breach of contract claim failed as a matter of law because he had no contract with the Yazdchis, the unjust enrichment claims failed as a matter of law because he had no relationship or dealings with the Yazdchis, and the breach of fiduciary duty claims failed as a matter of law because he was not in a fiduciary relationship with the Yazdchis.
On June 6, 2006, the Yazdchis filed a response to Cornelius's summary judgment motion, in which "Abbas Yazdchi request[ed] to transfer this case to probate court case # 364333 court #2 because of his death." Ali Yazdchi signed the response "Abbas Yazdchi, Ali executor." Other than the unsupported request to transfer the case, the response contained no discussion, argument, authority, or evidence in support of a transfer to a pending probate proceeding.
The trial court, on September 5, 2006, granted Cornelius summary judgment on all of Ahmad Yazdchi's claims, on all of Abbas Yazdchi's claims except fraud, and on all of Habibolah Yazdchi's claims except fraud, breach of contract, and unjust enrichment. Cornelius subsequently moved to dismiss Abbas Yazdchi's claim, asserting that although Ali Yazdchi had represented to the court that he was pursuing Abbas Yazdchi's remaining fraud claim as executor, Ali Yazdchi had no standing and authority to do so. The trial court, on June 4, 2007, attempted to conduct a trial on the merits of the remaining claims, and attorney William Ryan announced that he was appearing to represent Habibolah Yazdchi, although Habibolah did not appear in person at trial. In accordance with his previously filed motion to dismiss, Cornelius then asked the trial court to dismiss Abbas Yazdchi's claim "based on the fact that Ali Yazdchi does not have standing to move forward . . . because he does not have the authority vested in him by the order of the probate court." After the trial court inquired as to whether Ryan had any objection, to which he stated he did not, Ali Yazdchi, who also appeared at trial, did not voice any objection to the dismissal on the record. The case then proceeded to trial on the remaining claims of Habibolah Yazdchi. In support of these claims, Ryan presented the testimony only of Ali Yazdchi. During Ali Yazdchi's testimony, the trial court granted a directed verdict in favor of Cornelius on all remaining claims.
On June 29, 2007, the trial court signed a final judgment, in which it recited that it had previously granted summary judgment in part and that the only remaining claims after summary judgment were Abbas Yazdchi's fraud claim and Habibolah Yazdchi's fraud, breach of contract, and unjust enrichment claims. The trial court further recited that it had dismissed Abbas Yazdchi's remaining claim on June 4, 2007. The trial court then rendered judgment in Cornelius's favor on Habibolah Yazdchi's claims.
On July 29, 2007, Abbas and Habibolah Yazdchi filed a motion for new trial "and to transfer the deceased case to probate court for further proceedings since a probate proceeding has been opened and is pending and probate court has jurisdiction over this case." In this document, Ali Yazdchi argued that the trial court should set aside its dismissal of Abbas Yazdchi's fraud claim and transfer it to the probate court because Abbas did not have an independent executor at the time of trial, Ali Yazdchi had obtained "newly discovered evidence" in the form of a June 28, 2007 order from a probate court appointing him as independent executor, and he needed time to hire an attorney to pursue Abbas Yazdchi's claim. Attached to this motion were letters testamentary stating that, on June 28, 2007, Ali Yazdchi had been appointed as independent executor of Abbas Yazdchi's last will and testament. Also attached to the motion was a June 28, 2007 order "admitting will to probate and authorizing letters testamentary."
The new trial motion was overruled by operation of law. Nevertheless, Cornelius subsequently filed a response to the Yazdchis' new trial motion, in which he asserted that the Yazdchis failed to provide any evidence that the discovery of this alleged new evidence was not the result of their failure to exercise diligence. Cornelius noted that the Yazdchis knew of Abbas Yazdchi's death more than one year before trial and that, at trial, Ali Yazdchi recognized that he did not have the authority to act on behalf of Abbas Yazdchi's estate.
In five issues, Abbas Yazdchi argues that the trial court erred in granting Cornelius's motion to dismiss Abbas Yazdchi's claim "because [he] was dead and there was nobody to represent him" and in granting summary judgment because fact issues remained.
First, we note that although the notice of appeal identifies appellants as Abbas and Habibolah Yazdchi, the cover of appellant's brief identifies the only appellant as Abbas Yazdchi. Also, the only specific arguments in the brief relate solely to the remaining fraud claim of Abbas Yazdchi. In a reply brief, Ali Yazdchi states that he is the only appellant in this case. Accordingly, we limit our review to the trial court's rulings regarding Abbas Yazdchi's claim.
Second, although Ali Yazdchi, in his briefing to this Court, includes in his issues presented a general complaint regarding the trial court's summary judgment rulings, in his argument he provides no authority or argument relevant to the trial court's granting of summary judgment in favor of Cornelius on all of Abbas Yazdchi's claims other than his fraud claim. Accordingly, we hold that, to the extent that Ali Yazdchi seeks to appeal the trial court's granting of summary judgment in favor of Cornelius, he has waived any such appeal. (4) See Tex. R. App. P. 38.1(h). Moreover, Ali Yazdchi does not in any way address the specific grounds for summary judgment set forth in Cornelius's motion or the evidence presented in support of the motion. See Wilchester West Concerned Homeowners LDEF, Inc. v. Wilchester West Fund, Inc., 177 S.W.3d 552, 562 (Tex. App.--Houston [1st Dist.] 2005, pet. denied) (citing Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995) (stating that "non-movant is required to show that each ground alleged in the motion for summary judgment was insufficient to support summary judgment")). Thus, even if Ali Yazdchi had addressed one of the grounds presented in Cornelius's summary judgment motion, we would be required to affirm the summary judgment on the other grounds not addressed on appeal by Ali Yazdchi. See id.
The only remaining issue on appeal for us to address, to the extent possible, is Ali Yazdchi's argument that the trial court erred in dismissing Abbas Yazdchi's fraud claim because Abbas Yazdchi was deceased and that, as a result, the trial court was required to transfer this claim to a pending probate proceeding.
Ali Yazdchi does not provide a clear, comprehensible argument in his appellate brief or reply brief as to why the trial court was required to transfer the case based upon the information or arguments before it at the time of the dismissal. Ali Yazdchi also does not in any way address the statements at trial by Ryan, Habibolah Yazdchi's attorney, that he had no objection to the dismissal of Abbas Yazdchi's claim or the fact that Ali Yazdchi, who was the only Yazdchi who was present with Ryan on the day of trial, also made no objection to Cornelius's motion to dismiss Abbas Yazdchi's claim. Most significantly, Ali Yazdchi does not address his prior representations to the trial court that he had, in fact, already been appointed as independent executor for Abbas Yazdchi by the time of trial.
Construing the briefing rules liberally, we have independently examined the record before us in an effort to understand Ali Yazdchi's arguments. See Tex. R. App. P. 38.9. Unfortunately, the record, like Ali Yazdchi's briefing, provides little information as to the exact circumstances of the parties at the time of the dismissal. The record does show that the trial court was faced with contradictory assertions by Ali Yazdchi as to how to proceed on Abbas Yazdchi's claim. It is undisputed that, at the time of the dismissal, Abbas Yazdchi was deceased, although the parties do not provide the exact date of his death or cite to any record evidence revealing this date. As to whether the trial court was even aware of Ali Yazdchi's argument, now presented on appeal, that the trial court was required by law to transfer Abbas Yazdchi's claim, the record shows that, prior to the dismissal, at an April 2006 oral hearing, Ali Yazdchi represented to the trial court that he was seeking to continue Abbas Yazdchi's claims in his capacity as independent executor and that he was in the process of obtaining counsel to continue prosecuting the claim. (5) Thus, the record can be fairly interpreted to reflect that, at this time, Ali Yazdchi was taking the position that the claim should be continued in the trial court, and he never asserted that the trial court was required to transfer the case to a probate court.
Subsequently, in the caption of the Yazdchis' summary judgment response, Ali Yazdchi, in his alleged capacity as executor, did include a request that Abbas Yazdchi's case be transferred to a specific probate cause number. However, he did not provide the trial court with any authority in support of his assertion and his response was devoid of any additional discussion or argument regarding a pending probate proceeding or Ali Yazdchi's alleged status as independent executor for Abbas Yazdchi. There was also nothing in his response informing the trial court that Ali Yazdchi contended a transfer at that time was required by law.
More importantly, at the June 4, 2007 trial, when the trial court considered Cornelius's motion to dismiss Abbas Yazdchi's claim, the only attorney present for any of the Yazdchis, William Ryan, stated that he had no objection to the dismissal. Ali Yazdchi, who was present and who had previously claimed to represent Abbas Yazdchi in his capacity as independent executor, did not say anything to indicate his objection to the dismissal, his disavowal of his prior claims, or his desire to continue Abbas Yazdchi's claims. Although there is nothing in the record to show that Ali Yazdchi was formally making an appearance as the claimed executor, there is also nothing to show that he had disavowed his prior claim to the trial court that he was Abbas Yazdchi's independent executor or was entitled to represent him in the prosecution of his remaining claim. Thereafter, Ryan presented Ali Yazdchi as his only fact witness in support of Habibolah Yazdchi's claims. Only after the trial court had signed its final judgment dismissing all of the Yazdchis' claims did Ali Yazdchi, in his new trial motion, finally argue that the trial court was required to transfer, rather than dismiss, Abbas Yazdchi's case.
We conclude that Ali Yazdchi has waived his argument that the trial court was required to transfer Abbas Yazdchi's case to a pending probate proceeding. (6) See Tex. R. App. P. 33.1.
We overrule Ali Yazdchi's five issues.
We affirm the judgment of the trial court.
Panel consists of Justices Jennings, Hanks, and Bland.
1. We note that, in each of the following appeals brought by Ali Yazdchi, the trial courts' judgments have been affirmed or the appeals brought by Ali Yazdchi have been dismissed. Yazdchi v. Nexcess Motorcars, No. 01-07-00185-CV, 2007 WL 1844901 (Tex. App.--Houston [1st Dist.] June 28, 2007, no pet.) (mem. op.); Yazdchi v. Allstate Ins. Co., No. 01-05-00327-CV, 2007 WL 1152983 (Tex. App.--Houston [1st Dist.] Apr. 19, 2007, no pet.) (mem. op.); Yazdchi v. Am. Honda Fin. Corp., No. 05-10479, 2007 WL 464705 (5th Cir. Feb. 6, 2007); Auto v. Travelers Ins. Co., No. 01-05-00327-CV, 2006 WL 2893324 (Tex. App.--Houston [1st Dist.] Oct. 12, 2006, no pet.) (mem. op.); Yazdchi v. S. County Mut. Ins. Co., No. 11-06-00166-CV, 2006 WL 2253940 (Tex. App.--Eastland Aug. 3, 2006, no pet.) (mem. op.); Yazdchi v. Am. Nat'l Prop. and Cas. Co., No. 01-05-00750-CV, 2005 WL 3454142 (Tex. App.--Houston [1st Dist.] Dec. 15, 2005, no pet.) (mem. op.); Yazdchi v. Citicorp Credit Serv., Inc., No. 01-05-00740-CV, 2005 WL 2989699 (Tex. App.--Houston [1st Dist.] Nov. 3, 2005, no pet.) (mem. op.); Yazdchi v. State, No. 14-04-00500-CV, 2005 WL 2149416 (Tex. App.--Houston [14th Dist.] Sept. 8, 2005, no pet.) (mem. op.); Yazdchi v. Am. Arb. Ass'n, No. 01-04-00149-CV, 2005 WL 375288 (Tex. App.--Houston [1st Dist.] Feb. 17, 2005, no pet.) (mem. op.); Yazdchi v. Bennett Law Firm, P.C., No. 14-01-00928-CV, 2002 WL 1163568 (Tex. App.--Houston [14th Dist.] May 30, 2002, no pet.) (not designated for publication); Bouja v. State, No. 14-00-00072-CV, 2000 WL 674850 (Tex. App.--Houston [14th Dist.] May 25, 2000, no pet.) (not designated for publication); Yazdchi v. City of Houston, No. 14-98-01296-CV, 1999 WL 219381 (Tex. App.--Houston [14th Dist.] Apr. 15, 1999, no pet.) (not designated for publication). As will be discussed in more depth below, it is undisputed that Abbas Yazdchi died during the underlying trial court proceedings. Ali Yazdchi is attempting to bring this appeal in his capacity as independent executor of the estate of Abbas Yazdchi. Also, Ali Yazdchi states in his briefing that he is the only appellant in this matter, and Habibolah Yazdchi has not filed anything with this Court indicating that he desires to proceed in this appeal. Although we refer to Ali Yazdchi as appellant in his alleged capacity as independent executor for the estate of Abbas Yazdchi, this opinion should not be considered as establishing that he is in fact the independent executor of the estate of Abbas Yazdchi. The trial court asked Ali Yazdchi whether Habibolah and Ahmad Yazdchi, the remaining plaintiffs, were even aware of the status of the case. Ali Yazdchi stated that they were not because they lived in Iran and that it was difficult to get in touch with them. Ali Yazdchi then stated that Habibolah was ill and Ali Yazdchi was going to tell him about the motion to withdraw once his health improved. However, upon the trial court's questioning, Ali Yazdchi agreed that O'Connor had sent proper notices to all of the Yazdchis to notify them of his desire to withdraw. Ali Yazdchi then conceded that, although the other Yazdchi plaintiffs lived in Iran, the only given address for all of them was the same address used by Ali Yazdchi. Morever, we note that there is no allegation or complaint in Yazdchi's briefing to this Court or in the Yazdchis' filings with the trial court that the trial court erred in granting summary judgment on all of Abbas Yazdchi's claims, other than his fraud claim, on the ground that Abbas Yazdchi was deceased at the time of the summary judgment proceedings or the trial court's summary judgment ruling. We also note that Ali Yazdchi appears not to understand the effect of the trial court's summary judgment ruling, as he asserts in his brief that the trial court granted summary judgment in favor of Abbas Yazdchi on his fraud claim. The record indicates that, despite the trial court's admonitions, Ali Yazdchi did not obtain counsel to represent him in his capacity as independent executor. We note that the record also contains a "Decree on Muniment of Title," dated June 26, 2006, from the same probate court that subsequently issued the letters testamentary. Ali Yazdchi does not address the legal effect of this document, but it appears that Ali Yazdchi initially sought to represent the interests of Abbas Yazdchi based upon this document.
In a reply brief, Ali Yazdchi appears to contend that the trial court did not allow him, in his capacity as independent executor, to be present at the June 4, 2007 trial. However, nothing in the record indicates that the trial court deprived Ali Yazdchi of the opportunity to be present in this capacity or that it somehow precluded him from objecting to Cornelius's motion to dismiss. The record does show that the trial court asked Ryan, the only attorney for any of the Yazdchis at the hearing, if he had any objection to the motion to dismiss, and he stated that he had no objection. Although Ryan did not appear to claim to represent Ali Yazdchi, Ryan represented Habibolah Yazdchi, the father of Abbas Yazdchi, and Ali Yazdchi was present at the trial.