Opinion
No. 14-05-00817-CV.
Opinion filed January 30, 2007.
On Appeal from the County Civil Court at Law No. 4 Harris County, Texas Trial Court Cause No. 810,322.
Panel Consists of Chief Justice HEDGES And Justices FOWLER And EDELMAN.
MEMORANDUM OPINION
Appellants, Habibollah Yazdchi and Ahmad Yazdchi, appeal from a final judgment favoring appellees, William S. Chesney III, individually and as representative of Frank, Elmore, Lievens, Chesney Turret, L.L.P., and The Oaks Condominium Association, Inc. Appellants sued appellees alleging conversion, negligence, fraud, and unjust enrichment. Appellees filed motions for summary judgment alleging both traditional and no evidence grounds. The trial court granted the motions and subsequently granted a final judgment after appellees nonsuited their counterclaims. On appeal, appellants contend that the trial court erred in granting summary judgment favoring The Oaks Condominium Association. We affirm.
In the trial court, appellants were joined by a third plaintiff, Abbas Yazdchi. However, the only reference to Abbas in the appellate briefing is a statement that he is now deceased.
Appellants do not mention William S. Chesney III in their briefing and do not make any arguments in regard to the judgment in his favor.
Background
In November 1999, the State of Texas filed a consumer protection suit against appellants' brother, Ali Yazdchi. The pleadings in that lawsuit list numerous aliases for Ali, including "Abbas Yazdchi," "Habibollah Yazdchi," and "Ahmad Yazdchi." The trial court entered a temporary restraining order requiring numerous financial institutions (holding money in the name of or for the benefit of Ali), including TradeStar Investments, Inc., to freeze funds held not only under Ali's name, but also funds under any of Ali's aliases. TradeStar attempted to comply with this order by freezing an account that appellants assert belonged to them. The court also entered a temporary injunction and appointed a temporary receiver for Ali and any assets standing in either his name or any of his aliases, specifically requiring the relevant financial institutions, including TradeStar, to turn over any such assets to the custody of the temporary receiver. Meanwhile, The Oaks Condominium Association intervened in the action, asserting a preexisting claim against the funds based on two prior and unsatisfied judgments against Ali. After Ali and The Oaks Condominium Association signed a Settlement Agreement and Mutual Release, the receiver paid The Oaks Condominium Association $33,611.43 on Ali's behalf. Appellants subsequently brought the present action, alleging that The Oaks Condominium Association and Williams S. Chesney III "took or stole $33,611.43 that belonged to [appellants'] accounts." As stated, the trial court granted both The Oaks Condominium Association's and Williams S. Chesney III's motions for summary judgment.
In related lawsuits, appellants have contended that TradeStar; Bank One, Texas, N.A.; and Chase Bank, Texas, N.A., improperly froze and transferred assets in accounts owned by appellants rather than Ali. See Yazdchi v. TradeStar Invs. Inc., No. 14-05-00125-CV, 2006 WL 2729644 (Tex.App.-Houston [14th Dist.] Sept. 26, 2006, no pet. h.); Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399 (Tex.App.-Houston [1st Dist.] 2005, pet. denied), cert. denied, 127 S. Ct. 206 (2006). In each case, the trial court granted summary judgment favoring the financial institution or institutions involved and the appellate court affirmed. See TradeStar Invs., 2006 WL 2729644, at *3; Bank One, Tex., 177 S.W.3d at 409.
Discussion
Appellants' initial brief appears substantially to be a copy of a brief filed in a separate appeal. In Yazdchi v. TradeStar Invs. Inc., No. 14-05-00125-CV, 2006 WL 2729644 (Tex.App.-Houston [14th Dist.] Sept. 26, 2006, no pet. h.), appellants argued that the trial court erred in granting summary judgment against their breach of contract claim, which asserted that TradeStar improperly transferred funds from appellants' account to the receiver. They make the same arguments in their initial briefing in the case now before us. In fact, all of their arguments in their initial briefing revolve around the allegedly improper transfer of funds by TradeStar to the receiver. While, as mentioned above, appellants have alleged conversion, negligence, fraud, and unjust enrichment against The Oaks Condominium Association, they have made no allegations that The Oaks Condominium Association improperly transferred funds, breached any contract, or is responsible for TradeStar's alleged improper transfer and breach of contract. Consequently, none of the arguments made in appellants' original brief are relevant to the present appeal. Accordingly, each and all of the issues raised in appellants' original brief are overruled.
The appellants in Yazdchi v. Tradestar included Ahmad and Abbas Yazdchi but not Habibollah.
In their reply brief, appellants make several new and potentially relevant arguments. However, appellants do not cite any authority in support of these arguments. Thus, the arguments are not adequately briefed. See TEX. R. APP. P. 38.1 ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."). Appellants also reference their response to the motion for summary judgment, but such reference is not an appropriate way to make arguments on appeal. See, e.g., Redmon v. Griffith, 202 S.W.3d 225, 241 (Tex.App.-Tyler 2006, pet. filed).
Even if we were to consider the response as incorporated in the brief, it contains only sparse authority regarding the summary judgment standard of review and no authority regarding the substantive issues in this case.
In its brief, The Oaks Condominium Association moves for a finding that appellants' appeal is frivolous and requests attorney's fees. See TEX. R. APP. P. 45 (authorizing damages for frivolous appeals). Although we have discretion to impose such sanctions, we will do so only under the most egregious circumstances. Conseco Fin. Serv. v. Klein I.S.D., 78 S.W.3d 666, 676 (Tex.App.-Houston [14th Dist.] 2002, no pet.). In determining whether sanctions are appropriate, we examine the record from appellant's point of view at the time appeal was perfected and consider whether appellant had a reasonable expectation of reversal and whether he or she pursued the appeal in bad faith. Chapman v. Hootman, 999 S.W.2d 118, 124 (Tex.App.-Houston [14th Dist.] 1999, no pet.). If an appellate argument simply fails to convince the court, but has a reasonable basis in law and constitutes an informed, good-faith challenge to the trial court's judgment, sanctions are not appropriate. Conseco Fin. Serv., 78 S.W.3d at 676 (citing Gen. Elec. Credit Corp. v. Midland Cent. Appraisal Dist., 826 S.W.2d 124, 125 (Tex. 1991)). Appellants here are pro se litigants apparently unfamiliar with the intricacies of appellate advocacy. While this status does not necessarily excuse improper briefing, it does suggest that it was not the product of bad faith. Accordingly, we decline to impose sanctions under the circumstances of this case. The Oaks Condominium Association's motion is overruled.
We note that the First Court of Appeals has determined that a finding of bad faith "is neither dispositive nor material to deciding whether an appeal is objectively frivolous" under the new version of Rule 45 enacted in 1997. See Lookshin v. Feldman, 127 S.W.3d 100, 106 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). We have thus far declined to follow the First Court's lead on this issue and decline to do so in the present case.
We affirm the trial court's judgment.