ROGER DALE GUESS Appellant v. THE STATE OF TEXAS (Other)

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State: Texas

Court: Criminal Court of Appeals

Docket No: PD-0347-10

Case Date: 09/15/2010

Plaintiff: ROGER DALE GUESS Appellant

Defendant: THE STATE OF TEXAS (Other)

Preview:Fred Tabrizi v. Das-Rez Corporation d/b/a El
Maracumbe Restaurant, H.D. Hosseini and Seima D.
Hosseini--Appeal from 131st Judicial District Court of
Bexar County
MEMORANDUM OPINION
No. 04-05-00945-CV
Fred TABRIZI,
Appellant
v.
DAS-REZ CORP., d/b/a EL MARACUMBE RESTAURANT
& H.D. HOSSEINI,
Appellees
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CI-06731
Honorable Janet P. Littlejohn, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Alma L. L pez, Chief Justice
Catherine Stone, Justice
Karen Angelini, Justice
Delivered and Filed: March 7, 2007
AFFIRMED
This is an appeal of the trial court's Order of Satisfaction of Judgment that was entered after this court issued its
mandate in Tabrizi v. Das-Rez Corp., 153 S.W.2d 63 (Tex. App.--San Antonio 2004, no pet.).
I. Background Facts
Fred Tabrizi managed a restaurant owned by H.D. Hosseini. A dispute arose regarding an alleged promise Hosseini
made to Tabrizi wherein Tabrizi was to receive an ownership interest in Hosseini's restaurant business in exchange for
investing in the cost of remodeling the restaurant. When Hosseini subsequently refused to give Tabrizi an ownership
interest in the restaurant, Tabrizi resigned and sued Daz-Rez Corp. d/b/a/ El Maracumba Restaurant and H.D. Hosseini
("Hosseini") for breach of contract, fraud, and negligent misrepresentation. A jury awarded Tabrizi $36,913.00 for his
loss of benefit of the bargain damages; $183,000.00 for his consequential damages; $1,000.00 for negligent
misrepresentation; $1,000.00 for fraud; and $34,500.00 in attorney's fees. (1) Hosseini then moved for, and was
granted, a judgment notwithstanding the verdict, which resulted in Tabrizi losing his breach of contract damages;
consequently, the final judgment did not include the jury's award of attorney's fees but did state that "[a]ll costs of
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court spent or incurred in this cause [were] adjudged against Defendants, Das-Rez Corporation d/b/a El Maracumbe
Restaurant and H. D. Hosseini." Both parties appealed the trial court's judgment.
II. The First Appeal
On appeal, this court found that Tabrizi was entitled to breach of contract damages and reinstated the jury's award in
the amount of $36,913.00 for his loss of benefit of the bargain damages; however, Tabrizi never requested the
reinstatement of the jury's award of attorney's fees in either his brief or his motion(s) for rehearing and therefore, the
issue was not addressed by this court. Instead, this court modified the judgment of the trial court to reflect that Tabrizi
recover $36,913.00 in damages on his breach of contract claim. As modified, the trial court's judgment, which did not
include attorney's fees, was affirmed and the costs of appeal were taxed against the party who incurred them. (2)
III. Trial Court's Order Post-Mandate
On January 5, 2005, this court issued its mandate in Tabrizi v. Das-Rez Corp., 153 S.W.3d 63, affirming the trial
court's judgment, as modified. Thereafter, Hosseini sought to pay off the judgment; however, Tabrizi refused to sign a
release, maintaining that he was entitled to the attorney's fees awarded by the jury. Hosseini then filed its Motion to
Enter Order Permitting Deposit in Satisfaction of Judgment on or about October 31, 2005. The motion represented that
the final judgment awarded Tabrizi $1,000.00 plus interest but "made no mention of any other awards" when, in fact,
the final judgment awarded costs adjudged against Hosseini. However, the record before this court does not reflect that
Tabrizi filed a written response to Hosseini's motion, apprising the court of this error. Moreover, the transcript of the
November 4, 2005 hearing on Hosseini's motion likewise does not reflect any attempt on Tabrizi's part to notify the
trial judge that Tabrizi was, in fact, entitled to court costs despite Hosseini's statements to the contrary.
At the November 4, 2005 hearing, the following exchange took place:
MR. MURRAY: So, essentially, what we're here to do is ask for an order allowing us to make a deposit into the
Registry of the Court. And then upon that deposit, an order acknowledging that the judgment has been paid and
satisfied.
THE COURT: Is there any dispute about the amount, Mr. Deadman?
MR. DEADMAN: There's not, Judge. The first part of his argument there is no dispute. We're happy for him to make a
tender to the Court. As to anything else, there's not a controversy yet. I don't know under what terms and conditions he
intends to make that tender. If the tender is unconditional, I will agree, interest stops running.
So the Court is fully aware, you're probably aware the mandate came down on the breach of contract claim, but there
were no attorney's fees, even though the jury awarded it. Mr. Poncio has either already filed or is in the process of
filing a DEC judgment action concerning the award of attorney's fees. We do not want to sign a release because we
don't want it to affect that case. I don't believe the Court can enter any orders affecting that case.
I'm not sure the second part is ripe for any adjudication because no tender has been made, either to me or to the Court
Registry. What they are attempting to get is an advisory opinion, that if we could make it, would you enter the
following order. It's simply an advisory opinion. It's prohibited by the Constitution. Go ahead and make the tender and
then Mr. Tabrizi will make a decision about what to do.
COURT'S RULING
THE COURT: Let's do this. If y'all are in agreement on the amount to be paid to Mr. Tabrizi, the interest and the court
costs and all of that added in, I assume that's true; is that correct?
MR. MURRAY: That's correct.
THE COURT: Let's tender that amount and an order saying that the money has been paid into the Registry of the
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Court. And then you can request, Mr. Deadman, an order paying the money out of the Registry of the Court for Mr.
Tabrizi's judgment only. And you can even include in there some phraseology that would, save and except, any dispute
over attorney fees.
MR. DEADMAN: I appreciate it, Judge.
THE COURT: Okay.
MR. MURRAY: I have a proposed order to that effect, Your Honor.
THE COURT: Yes, sir.
Additionally, the proposed order referred to by Hosseini's counsel clearly did not incorporate court costs in the amount
Hosseini claimed was owed to Tabrizi. Nevertheless, Tabrizi subsequently withdrew all the funds from the registry of
the court.
IV.The Second Appeal
Tabrizi now appeals the trial court's Order of Satisfaction of Judgment, asking this court to find that "[t]he trial court
erred in entering its order of November 23, 2005" and in "failing to award costs and/or attorney's fees . . . ."
While a trial court generally has the power to enforce its judgments beyond the expiration of its plenary powers, the
enforcement orders must be consistent with the final judgment. See Allen v. Allen , 717 S.W.2d 311, 312 (Tex. 1986);
see also Pope v. Gaffney, 2006 WL 1684661, *2 (Tex. App.--San Antonio June 21, 2006, pet. denied) (not designated
for publication) (citing Comm'n for Lawyer Discipline v. Denisco, 132 S.W.3d 211, 215 (Tex. App.--Houston [14th
Dist.] 2004, no pet.)). A trial judge has no authority to materially alter a part of the final judgment after the trial court
has lost its plenary power. See Pope, 2006 WL 1684661, *2; Denisco, 132 S.W.3d at 215.
Moreover, it is well settled that before a party can complain on appeal, he "must present to the trial court a timely
request, motion, or objection, state the specific grounds therefore, and obtain a ruling." See Wal-Mart Stores, Inc. v.
McKenzie, 997 S.W.2d 278, 280 (Tex. 1999); In re J.P.H., 196 S.W.3d 289, 295 (Tex. App.--Eastland 2006, no pet.).
A. Court Costs
In the present case, the record does not reflect that Tabrizi presented a timely request to the trial court, prior to its entry
of the Order of Satisfaction of Judgment, for court costs or that Tabrizi objected to the court's failure to award court
costs and thereafter, obtained a ruling. See Wal-Mart Stores, Inc., 997 S.W.2d at 280. In fact, Tabrizi represented to
the court that there was no dispute as to the amount owed and kept silent when the trial judge asked the parties whether
the amount in the Order of Satisfaction of Judgment was correct and included interest and court costs. Consequently,
Tabrizi failed to apprise the trial court of its error in omitting court costs and has waived this issue on appeal. Tex. R.
App. P. 33.1; Wal-Mart Stores, Inc., 997 S.W.2d at 280.
B. Attorney's Fees
Tabrizi further argues that the trial court erred in entering its Order of Satisfaction of Judgment because said order fails
to award him the attorney's fees awarded by the jury. And while Tabrizi advised the court he believed he was entitled
to attorney's fees, the record does not reflect that Tabrizi presented a timely request, motion, or objection, stating the
specific grounds or that he thereafter, obtained a ruling. See Wal-Mart Stores, Inc, 997 S.W.2d at 280. However, even
if Tabrizi had properly preserved his appellate complaint with respect to the Order of Satisfaction of Judgment, the
trial judge would have been without authority to award attorney's fees post-mandate since to do so would have
materially altered a part of the final judgment after the trial court had lost its plenary power. See Pope, 2006 WL
1684661, *2; Denisco, 132 S.W.3d at 215.
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Thus, the trial court had authority to enforce its judgment, as modified by this court's mandate, by entering the Order of
Satisfaction of Judgment, (3)
and did not err in "failing to award costs and/or attorney's fees" to Tabrizi. See Pope, 2006 WL 1684661, *2; Denisco,
132 S.W.3d at 215. Tabrizi's issues are overruled.
V. Sanctions
Finally, Hosseini requests we award damages under Texas Rule of Appellate Procedure 45 against Tabrizi for pursuing
a frivolous appeal. Rule 45 provides as follows:
If the court of appeals determines that an appeal is frivolous, it may--on motion of any party or on its own initiative,
after notice and a reasonable opportunity for response -- award each prevailing party just damages. In determining
whether to award damages, the court must not consider any matter that does not appear in the records, briefs, or other
papers filed in the court of appeals.
Tex. R. App. P. 45. The determination whether to grant appellate sanctions is within the discretion of the reviewing
court. See W. Wendell Hall, Standards of Review in Texas, 38 St. Mary's L.J. 52, 302 (2006). This discretion must be
exercised "with prudence, caution, and after careful deliberation." Baker Hughes Oilfield Operations, Inc. v. Hennig
Prod. Co., Inc., 164 S.W.3d 438, 448 (Tex. App.--Houston [14th Dist.] 2005, no pet.) (citing Rios v. Nw. Steel & Wire
Co., 974 S.W.2d 932, 936 (Tex. App.--Houston [14th Dist.] 1998, no pet.)). Thus, "[a]s long as [Tabrizi's] argument
has a 'reasonable basis in law and constituted an informed, good faith challenge to the trial court's judgment,' this
court's award of sanctions . . . would not be appropriate." Herring v. Welborn, 27 S.W.3d 132, 145-46 (Tex. App.--San
Antonio 2000, pet. denied) (citing General Elec. Credit Corp. v. Midland Cent. Appraisal Dist., 826 S.W.2d 124, 125
(Tex.1991) (per curiam)).
While we have determined that Tabrizi is not entitled to court costs and the jury award of attorney's fees, we decline to
impose sanctions; accordingly, Hosseini's cross-point is refused. Herring, 27 S.W.3d at 145-46.
Karen Angelini, Justice
1. The award of attorney's fees was broken down as follows: $28,000.00 for trial; $3,500.00 for an appeal to the Court
of Appeals; and $3,000.00 for an application or response to a Petition for Review to the Supreme Court.
2. Tabrizi argued in his Motion(s) for Rehearing that this court erred in apportioning costs in this manner; however,
Tabrizi's motions were denied.
3. The order also stated that "[t]he satisfaction of judgment shall have no effect on other remedies or other claims
sought by Plaintiff for attorney's fees . . . ." However, this language does not in any way enforce the final judgment or
the mandate issued by this court and is void. See Blair v. State, 640 S.W.2d 867, 869 (Tex. 1982) (citing Taylor v.
Dinsmore, 114 S.W.2d 269, 272 (Tex. Civ. App.--1938, writ ref'd) (although void in part, a judgment may stand as to
the remainder)).
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