Opinion
NO. 01-15-00969-CV
04-25-2017
ALI YAZDCHI, Appellant v. BBVA COMPASS BANK, Appellee
On Appeal from the 152nd District Court Harris County, Texas
Trial Court Case No. 2015-05657
MEMORANDUM OPINION
Ali Yazdchi appeals a summary judgment in favor of BBVA Compass Bank on Yazdchi's various claims against BBVA related to its alleged breach of the parties' deposit agreement. In six issues, Yazdchi argues that (1) he raised fact issues precluding summary judgment, (2) the trial court erred by awarding BBVA attorney's fees, (3) summary judgment was improperly granted on Yazdchi's later-pleaded fraud claim, (4) the summary judgment and an order declaring him a vexatious litigant are invalid because the trial judge has a financial interest in BBVA, and (5) alternatively, summary judgment was improper because section 4.406 of the Texas Business and Commerce Code does not apply to bar his suit. We affirm.
Background
Yazdchi sued BBVA, alleging that BBVA breached the parties' deposit agreement by failing to provide him with his account statements, failing to change his address as requested, and allowing unauthorized transfers from his account. Yazdchi alleged claims for breach of contract, money had and received, conversion, and claims under the Deceptive Trade Practices Act, and sought damages and exemplary damages. BBVA responded and counterclaimed for attorney's fees based upon the prevailing party provision in the deposit agreement, which stated:
Attorneys' Fees. In any action between you and us in court, the prevailing party shall be entitled to recover its reasonable attorneys' fees expended in the prosecution or defense of the court action from the other party.
BBVA moved for summary judgment on all of Yazdchi's claims and its own claim for attorney's fees. BBVA also moved to have Yazdchi declared a vexatious litigant. See, e.g., Yazdchi v. Jones, 499 S.W.3d 564, 570-71 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (detailing Yazdchi's litigation history).
After BBVA moved for summary judgment, Yazdchi filed an amended petition which added a fraud claim. Yazdchi also filed a response to BBVA's summary-judgment motion, but he did not timely serve it on BBVA. BBVA moved to strike the response, and the trial court ruled that it would not consider Yazdchi's response because it was not timely served. The trial court granted summary judgment in BBVA's favor, awarded BBVA attorney's fees, and declared Yazdchi a vexatious litigant. Yazdchi appeals.
Summary Judgment
On appeal, Yazdchi attacks the summary judgment on his breach of contract and fraud claims but expressly declines to attack the summary judgment on his other claims. In his first, third, and fifth issues, Yazdchi contends summary judgment as to his breach of contract and fraud claims was improper because he raised fact issues regarding his claims and because he amended his petition to add the fraud claim after BBVA filed its summary-judgment motion. In his fourth issue, Yazdchi contends that the trial court erred by granting BBVA summary judgment on its attorney's fees request.
A. Standard of Review
We review a trial court's summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary judgment without specifying the grounds for granting the motion, we must uphold the trial court's judgment if any of the grounds are meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). When a party has filed both a traditional and no-evidence summary-judgment motion, we typically first review the propriety of the summary judgment under the no-evidence standard. See TEX. R. CIV. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the no-evidence summary judgment was properly granted, we need not reach arguments under the traditional motion for summary judgment. Ford Motor Co., 135 S.W.3d at 600. When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
To prevail on a no-evidence motion for summary judgment, the movant must allege that there is no evidence to support an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523-24 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the nonmovant to present evidence raising a genuine issue of material fact as to each of the elements specified in the motion. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Hahn, 321 S.W.3d at 524.
In a traditional summary-judgment motion, the movant has the burden to show that no genuine issue of material fact exists and that the trial court should grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant moving for traditional summary judgment must conclusively negate at least one essential element of each of the plaintiff's causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
B. Breach of Contract
Yazdchi argues that summary judgment on his breach-of-contract claim was improper because BBVA breached the parties' deposit agreement by failing to provide him with his account statements, failing to change his address as requested, and allowing unauthorized transfers from his account. BBVA responds that summary judgment was proper because Yazdchi failed to produce any evidence that it breached the deposit agreement in response to its no-evidence motion.
1. Applicable Law
The essential elements to sustain a breach of contract claim are: (1) existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff resulting from the breach. Dupree v. Boniuk Interests, Ltd., 472 S.W.3d 355, 364 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (citing Pagosa Oil & Gas, L.L.C. v. Marrs & Smith P'ship, 323 S.W.3d 203, 213 (Tex. App.—El Paso 2010, pet. denied)).
2. Analysis
In its summary-judgment motion, BBVA contended that there was no evidence to support Yazdchi's claim that it breached the deposit agreement. Thus, Yazdchi bore the burden to adduce evidence raising a genuine issue of material fact regarding BBVA's alleged breach. See Mack Trucks, Inc., 206 S.W.3d at 582; Hahn, 321 S.W.3d at 524. Yazdchi filed a response to BBVA's summary-judgment motion, but he did not timely serve BBVA with a copy of the response, and BBVA moved to strike the response. At the hearing on the summary-judgment motion, the trial court ruled that that it would not consider Yazdchi's summary-judgment response because it was not timely served on BBVA. Yazdchi does not challenge this ruling on appeal.
Because his response was struck, Yazdchi did not meet his burden to adduce evidence raising a genuine issue of material fact regarding BBVA's alleged breach of the deposit agreement. See TEX. R. CIV. P. 166a(i) (trial court must grant no-evidence motion for summary judgment absent a timely response); Imkie v. Methodist Hosp., 326 S.W.3d 339, 343 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (nonmovant must timely file and serve response to defeat no-evidence motion for summary judgment); see also Michael v. Dyke, 41 S.W.3d 746, 751 (Tex. App.— Corpus Christi 2001, no pet.) ("Failure to respond to a no-evidence motion is fatal."), abrogated on other grounds by Binur v. Jacobo, 135 S.W.3d 646 (Tex. 2004). Accordingly, we hold that the trial court did not err in granting BBVA summary judgment on Yazdchi's breach-of-contract claim.
We overrule Yazdchi's first and fifth issues.
C. Fraud
Yazdchi argues that summary judgment on his fraud claim was improper because BBVA committed fraud by failing to provide him with his account statements, failing to change his address as requested, and allowing unauthorized transfers from his account. BBVA responds that summary judgment on Yazdchi's fraud claim was proper because the grounds asserted in BBVA's summary-judgment motion showed that Yazdchi's fraud claim failed.
1. Applicable Law
The elements of fraud are: (1) that the speaker made a material misrepresentation (2) that he knew was false when he made it or that he made recklessly without any knowledge of its truth and as a positive assertion (3) with the intent that the other party act upon it and (4) that the other party acted in reliance on the misrepresentation and (5) suffered injury thereby. Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 337 (Tex. 2011). The mere failure to perform a contract is not evidence of fraud. Formosa Plastics Corp. USA v. Presidio Eng'rs and Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998).
2. Analysis
Yazdchi amended his petition to add a fraud claim after BBVA filed its summary-judgment motion. Generally, summary judgment cannot be granted on a claim not addressed in the summary-judgment motion. Chessher v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983). However, summary judgment may be granted on later pleaded causes of action if the grounds asserted in the motion for summary judgment show there can be no recovery on the later pleaded cause of action. Jones v. Illinois Empls. Ins. of Wausau, 136 S.W.3d 728, 744 (Tex. App.—Texarkana 2004, no pet.) (citing Sharpe v. Roman Catholic Diocese of Dallas, 97 S.W.3d 791, 797 (Tex. App.—Dallas 2003, pet. denied)).
In its summary-judgment motion, BBVA argued that any tort claim Yazdchi asserted must fail because "[n]o additional duty exists other than as provided by written contract." Among other things, BBVA cited Frost National Bank v. Heafner, 12 S.W.3d 104 (Tex. App.—Houston [1st Dist.] 1999, pet. denied), for the proposition that a claim that a party breached a deposit agreement does not support, among other things, a fraud claim. See id. at 112. Accordingly, BBVA argued that any non-contract claim brought by Yazdchi "must be dismissed as a matter of law." BBVA went on to argue that even if Yazdchi amended his pleading to add other tort claims in an attempt to avoid summary judgment, they would all be based on an alleged breach of the deposit agreement and would be required to be dismissed:
[I]f Plaintiff tries to amend Plaintiff's Petition and bring additional future claims, all of these claims involve the same set of facts. Specifically, Plaintiff is apparently claiming that Compass Bank improperly allowed disbursements out of Plaintiff's bank account [in breach of the deposit agreement]. However, Plaintiff may not recast Plaintiff's claim in the language of another cause of action to avoid limitations or compliance with mandatory statutes or to circumvent existing case law contrary to Plaintiff's position.Thus, BBVA's motion contemplated that Yazdchi might amend his petition to include other tort claims, including in particular a fraud claim, and argued that any such claim must fail. See id. (failure to perform contract is not evidence of fraud) (citing Formosa, 960 S.W.2d at 48). Moreover, before the summary-judgment hearing, BBVA filed a response arguing that Yazdchi's newly added fraud claim amounted to nothing more than a complaint that BBVA breached the deposit agreement and failed for the reasons raised in its initial motion and for the same reason that Yazdchi's breach claim failed.
Thus, the grounds asserted in BBVA's summary-judgment motion showed that Yazdchi's fraud claim failed. See Jones, 136 S.W.3d at 744. Therefore, the trial court did not err in granting summary judgment on Yazdchi's later-pleaded cause of action for fraud. See id.
We overrule Yazdchi's third issue.
D. Other Claims
On appeal, Yazdchi expressly declined to challenge the summary judgment on the other claims he raised in the trial court, including his claims for money had and received, conversion, and claims under the Deceptive Trade Practices Act. To obtain reversal of the summary judgment on these claims, Yazdchi was required to complain about them on appeal. See Garcia v. Nat'l Eligibility Express, Inc., 4 S.W.3d 887, 889 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (affirming summary judgment on one of appellant's claims because appellant did not complain about grant of summary judgment on that claim on appeal) (citing Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) ("We have held repeatedly that the courts of appeals may not reverse the judgment of a trial court for a reason not raised in a point of error.")). Because Yazdchi does not challenge summary judgment on these claims on appeal, we must affirm the trial court's judgment on these claims. See Walling, 863 S.W.2d at 58; Garcia, 4 S.W.3d at 889.
Because we have concluded that the trial court did not err in granting summary judgment on the two causes of action Yazdchi challenges on appeal and we must affirm the summary judgment on the unchallenged claims, we hold that the trial court did not err in granting summary judgment. Because we have concluded that the trial court did not err by granting summary judgment, we need not reach Yazdchi's sixth issue, which attacks an alternative basis for the grant of summary judgment: whether section 4.406 of the Texas Business and Commerce Code bars Yazdchi's claims.
E. Attorney's Fees
In his second issue, Yazdchi contends that the trial court erred by awarding BBVA $24,477 in attorney's fees. BBVA responds that the award was properly supported and Yazdchi failed to object or raise a fact issue about the propriety of the fees requested.
1. Applicable Law
Generally, each party to a dispute bears the cost of his own attorney, absent a contractual or a statutory provision allowing for the recovery of attorney's fees. Sacks v. Hall, 481 S.W.3d 238, 250 (Tex. App.—Houston [1st Dist.] 2015, pet. denied); Gordon v. Leasman, 365 S.W.3d 109, 116 (Tex. App.—Houston [1st Dist.] 2011, no pet.). When a movant includes a prayer for attorney's fees in its summary-judgment motion, an attached affidavit constitutes testimony that may be considered proof of the attorney's fees incurred. Petrello v. Prucka, 415 S.W.3d 420, 431 (Tex. App.—Houston [1st Dist.] 2013, no pet.); see Gaughan v. Nat'l Cutting Horse Ass'n, 351 S.W.3d 408, 423 (Tex. App.—Fort Worth 2011, pet. denied). To create a fact issue, the nonmovant must, no later than 30 days after it "receives a copy of the affidavit," file a counter-affidavit contesting the reasonableness of the attorney's fees claim of the movant. See TEX. CIV. PRAC. & REM. CODE § 18.001(b), (e). Unless a controverting affidavit is timely served, "an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary." Id. § 18.001(b); see Petrello, 415 S.W.3d at 431 (unless controverting affidavit filed, attorney's fees stated in affidavit presumed reasonable and necessary).
2. Analysis
BBVA moved for summary judgment on its request for attorney's fees based on the prevailing party clause in the parties' deposit agreement, which stated:
Attorneys' Fees. In any action between you and us in court, the prevailing party shall be entitled to recover its reasonable attorneys' fees expended in the prosecution or defense of the court action from the other party.In support, BBVA submitted the deposit agreement and an affidavit reflecting that BBVA had incurred $27,819.80 in reasonable and necessary attorney's fees in connection with the case. Yazdchi did not file a controverting affidavit challenging the reasonableness and necessity of the fees. Nor did he offer any evidence to create a fact issue about the fees. The trial court awarded BBVA $24,477 in attorney's fees.
On appeal, Yazdchi argues that the fee award is improper because summary-judgment on his claims was improper. But we have concluded that the trial court did not err by granting summary judgment. Because Yazdchi did not file a controverting affidavit or raise a fact issue regarding attorney's fees, we hold that the trial court did not err in awarding BBVA attorney's fees. See Petrello, 415 S.W.3d at 431.
We overrule Yazdchi's second issue.
Alleged Conflict
In his fourth issue, Yazdchi contends that the summary judgment and the order declaring him a vexatious litigant are "invalid due to financial interest of the judge with the Defendant Bank." BBVA responds that there is no basis for this conclusory statement and Yazdchi has waived this argument by failing to cite to the record or any legal authority in support of this argument.
A. Vexatious Litigants
"The vexatious litigant statute permits trial courts to control their dockets by allowing expeditious dismissal 'of frivolous and malicious litigation by litigants without hope of success while, at the same time, providing protections for litigants' constitutional rights to an open court when they have genuine claims that can survive the scrutiny of the administrative judge and the posting of security' that is required by the vexatious litigant statute." Yazdchi, 499 S.W.3d at 569 (quoting In re Douglas, 333 S.W.3d 273, 284 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)). Under Section 11.051 of the statute, a defendant may "on or before the 90th day after the date the defendant files the original answer or makes a special appearance, move the court for an order determining that the plaintiff is a vexatious litigant and requiring the plaintiff to furnish security." Id. (quoting TEX. CIV. PRAC. & REM. CODE § 11.051). A court must conduct a hearing on a Section 11.051 motion. Id. (quoting TEX. CIV. PRAC. & REM. CODE § 11.053). During the hearing, the court makes a two-step inquiry. Id. "First, in every instance, the judge must conclude there is no reasonable probability the plaintiff will prevail in his litigation against the defendant. Second, the judge must determine the plaintiff has a history of pro se litigation that is addressed by the statute . . . ." Id. (quoting Drake v. Andrews, 294 S.W.3d 370, 374 (Tex. App.—Dallas 2009, pet. denied). The second step of the inquiry, as applicable here, examines whether,
(1) the plaintiff, in the seven-year period immediately preceding the date the defendant makes the motion . . . has commenced, prosecuted, or maintained at least five litigations as a pro se litigant other than in a small claims court that have been:
TEX. CIV. PRAC. & REM. CODE § 11.054.(A) finally determined adversely to the plaintiff;
(B) permitted to remain pending at least two years without having been brought to trial or hearing; or
(C) determined by a trial or appellate court to be frivolous or groundless under state or federal laws or rules of procedure.
B. Analysis
Yazdchi does not provide any record references to substantiate his unsupported claim about the trial court's alleged conflict. Nor does he cite any legal authority that would support the appellate reversal of the summary judgment or the vexatious litigant order. Texas Rule of Appellate Procedure 38.requires that an appellant's brief "must 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). "Rule 38 requires [a party] to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue." Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). "This is not done by merely uttering brief conclusory statements, unsupported by legal citations." Id. "Issues on appeal are waived if an appellant fails to support his contention by citations to appropriate authority . . . ." Abdelnour v. Mid Nat'l Holdings, Inc., 190 S.W.3d 237, 241 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177, 189 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
Yazdchi's argument with respect to his fourth issue does not contain a single citation to legal authority or the record. We therefore hold that Yazdchi has waived this issue. TEX. R. APP. P. 38.1; Morrill v. Cisek, 226 S.W.3d 545, 548-49 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding appellant waived appellate issues by not supporting with citations to legal authority or record).
We overrule Yazdchi's fourth issue.
Conclusion
We affirm the trial court's judgment.
Rebeca Huddle
Justice Panel consists of Justices Keyes, Bland, and Huddle.