Sulaiman Thobani v. Rahim Mithani and Koshi Enterprises, Inc. D/B/A Sonss Auto ( 2016 )

AFFIRM; and Opinion Filed July 6, 2016.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00270-CV
SULAIMAN THOBANI, Appellant
V.
RAHIM MITHANI AND KOSHI ENTERPRISES, INC. D/B/A SONSS AUTO, Appellees
On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-13-06433
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Myers
Opinion by Justice Lang-Miers
This is an appeal from an agreed final judgment rendered pursuant to a settlement
agreement between appellant Sulaiman Thobani and appellees Rahim Mithani and Koshi
Enterprises, Inc. d/b/a Sonns Auto. Thobani contends that the settlement agreement contains a
scrivener’s error and that the trial court erred (1) by refusing to require appellees to sign a
“supplement” to the settlement agreement or, (2) alternatively, by refusing to reform the
settlement agreement based on mutual mistake, and (3) by signing the agreed final judgment.
Because all dispositive issues are settled in law, we issue this memorandum opinion. TEX. R.
APP. P. 47.2(a), 47.4. We affirm the trial court’s judgment.
BACKGROUND
Thobani sued appellees over a business investment. During the litigation, the parties
settled their differences and appellees agreed to repay Thobani over time. The parties’ attorneys
were not involved in the settlement negotiations and were not aware the parties had reached a
settlement agreement.
On a Friday, Thobani informed his attorney that he had reached a settlement with
appellees, gave his attorney the terms of the settlement, and instructed his attorney to prepare the
settlement documents. Thobani’s attorney prepared a settlement agreement and sent it to
Thobani that same day. Thobani made changes to some of its terms and asked his attorney to
make the revisions. After Thobani’s attorney made the revisions, Thobani reviewed the
settlement agreement and forwarded it to appellees. The following Monday, Thobani and
appellees signed the settlement agreement. They also signed an agreed final judgment enforcing
the settlement agreement. Although appellees’ attorney signed the agreed final judgment that
same day approving it as to form, Thobani’s attorney did not sign it, and efforts to get him to
sign it so it could be filed in court proved futile.
Meanwhile, several weeks later, Thobani discovered an alleged scrivener’s error in the
payment schedule contained in the settlement agreement. The settlement agreement required a
payment upon signing, a payment in December 2014, no payments in 2015, and payments each
month from January 2016 through March 2017. Thobani claimed that he and appellees did not
agree to skip payments in 2015, and that the payments were to begin in December 2014, continue
each month in 2015, and end in March 2016, not March 2017. Thobani contacted his attorney,
who prepared and sent a “supplement” to appellees’ attorney asking appellees to sign it to reflect
the allegedly correct payment schedule. Appellees refused, contending that the settlement
agreement did not contain an error.
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Thobani filed a motion seeking an order compelling appellees to sign the “supplement.”
Alternatively, Thobani moved for reformation of the settlement agreement. In turn, appellees
moved to enforce the settlement agreement as written.
The court held a hearing on the parties’ respective motions. Thobani presented affidavit
and live testimony; appellees did not. Thobani testified that the parties agreed that the payments
would begin in December 2014 and continue for 14 consecutive months. He said the parties did
not agree to skip payments in the year 2015 and that the payment due dates contained in the
settlement agreement were due to a scrivener’s error. He also testified, however, that he
provided the terms of the settlement agreement to his attorney, he read the settlement agreement,
he made changes with regard to interest payments and where the payments should be sent, and
he presented the settlement agreement to appellees. Thobani testified that he and appellees
discussed the terms of the settlement agreement before signing it and after he delivered the
settlement agreement to appellees, they did not “ever indicate that the payment terms were
incorrect as to what [they] agreed to[.]”
Thobani said the only part of the settlement agreement that he “take[s] issue with is the
payment schedule[.]” He said when he received the agreement from his attorney, he “just did not
pay attention to the terms of the agreement and it was an error on my part. But that was not what
was agreed upon.” He said the alleged error came to his attention when he “was doing my
budget for the next year.” He said he has “a daughter that is ready to go to law school, and I was
not able to send her this year because of my financial situation. . . . I was trying to do the
budgeting . . . . At that time when I started to sit down with my pen and paper, I noticed that
there is an error there” and called his attorneys, who prepared the “supplement” to the settlement
agreement.
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The court denied Thobani’s motion to order appellees to sign the “supplement,” granted
appellees’ motion to enforce the settlement agreement, and signed the agreed final judgment
previously signed by the parties. Thobani moved for a new trial raising the same grounds, which
the court denied after a hearing. Thobani appeals.
DISCUSSION
In three issues on appeal, Thobani contends that the trial court erred by (1) granting
appellees’ motion to enforce the settlement agreement and denying his motion to order appellees
to sign the “supplement,” (2) denying reformation of the settlement agreement, and (3) signing
the agreed final judgment. We address issues one and two together.
Thobani argues that the payment schedule he and appellees agreed upon is not the same
payment schedule contained in the settlement agreement and that the payment schedule was
placed in the settlement agreement by a scrivener’s error, or mutual mistake. He sought
reformation of the settlement agreement by an order either requiring appellees to sign the
“supplement” or reforming the settlement agreement.
“The law presumes that a written agreement correctly embodies the parties’ intentions,
and is an accurate expression of the agreement the parties reached in prior oral negotiations.”
Estes v. Republic Nat’l Bank of Dallas, 462 S.W.2d 273, 275 (Tex. 1970). “The underlying
objective of reformation is to correct a mutual mistake made in preparing a written instrument,
so that the instrument truly reflects the original agreement of the parties.” See Cherokee Water
Co. v. Forderhause, 741 S.W.2d 377, 379 (Tex. 1987). The party seeking to reform an
agreement must show “(1) an original agreement and (2) a mutual mistake, made after the
original agreement, in reducing the original agreement to writing.” Id. “A mutual mistake is
generally established from all of the facts and circumstances surrounding the parties and the
execution of the instrument.” See Simpson v. Curtis, 351 S.W.3d 374, 379 (Tex. App.—Tyler
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2010, no pet.); see also Estes, 462 S.W.2d at 275; Williams v. Glash, 789 S.W.2d 261, 264 (Tex.
1990). The party seeking reformation must show more than that the agreement varies from the
terms to which the parties orally agreed. See Estes, 462 S.W.2d at 275. He must show also show
that the terms were placed in the writing by mutual mistake. Id. We determine whether an
agreement was prepared by mutual mistake based on our review of the objective circumstances
surrounding the signing of the agreement. See Glash, 789 S.W.2d at 264; see also Estes, 462
S.W.2d at 275.
The evidence in this case showed that Thobani and appellees negotiated the terms of the
settlement without input from their attorneys; Thobani gave the settlement terms to his attorney
to draft the settlement agreement; Thobani’s attorney drafted the settlement agreement and sent it
to Thobani; Thobani read the settlement agreement, deleted the interest payment, changed the
address where the payments would be sent, and returned it to his attorney; Thobani’s attorney
made the revisions and sent it to Thobani; Thobani read the revised settlement agreement and
sent it to appellees; appellees never said that the payment schedule was incorrect; and all the
parties signed the settlement agreement.
The settlement agreement contained provisions stating that Thobani “understands and
agrees that by execution hereof, the terms of this Agreement are binding upon” him; that “he has
approved all of the terms . . . of this Agreement as evidenced by [his] duly authorized signature”;
the settlement agreement “constitutes the entire agreement and understanding of the Plaintiff and
the Defendants . . . and supersedes all prior agreements, arrangements, and understandings
related to the subject matter hereof”; and each party to the agreement “HAS READ THIS
AGREEMENT . . . AND FULLY UNDERSTANDS IT.”
The evidence also showed that Thobani “believed, at the time [he signed the settlement
agreement, that it] accurately reflected the terms of the agreement between [appellees] and
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myself”; he did not realize the payment dates were in error until several weeks later when he was
preparing his budget for the year; his attorneys did not notice the error in the payment schedule;
and appellees refused to sign the “supplement” prepared by Thobani’s attorney because they did
not agree that the settlement agreement contained an error.
Thobani contends that reformation was required because his affidavit and live testimony
at the hearing were uncontroverted and presented “specific, exact and satisfactory evidence to
satisfy both elements of reformation.” We disagree. Mutual mistake is not shown by the “self-
serving subjective statements of the parties’ intent, which would necessitate trial to a jury in all
such cases, but rather solely by objective circumstances surrounding execution of the”
agreement. See Glash, 789 S.W.2d at 264. Thobani did not offer evidence that appellees agreed
to payment terms that were different from those contained in the settlement agreement other than
his own self-serving testimony and affidavit. See id.
Having reviewed the objective circumstances surrounding the execution of the settlement
agreement, we conclude that the trial court did not err by denying Thobani’s motion to order
appellees to sign the “supplement,” by granting appellees’ motion to enforce the judgment, or by
refusing to reform the settlement agreement. We resolve issues one and two against Thobani.
In issue three, Thobani argues that the trial court erred by signing the agreed final
judgment enforcing the settlement agreement because he withdrew his consent before the
judgment was signed. But Thobani did not argue or allege below that he had withdrawn his
consent to the agreed final judgment or settlement agreement. Instead, he sought reformation of
the settlement agreement to reflect the payment dates he contended were the correct payment
dates. Because Thobani did not raise this issue below, we will not consider it for the first time
on appeal. See TEX. R. APP. P. 33.1. We resolve issue three against Thobani.
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CONCLUSION
We affirm the trial court’s judgment.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
150270F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SULAIMAN THOBANI, Appellant On Appeal from the 160th Judicial District
Court, Dallas County, Texas
No. 05-15-00270-CV V. Trial Court Cause No. DC-13-06433.
Opinion delivered by Justice Lang-Miers.
RAHIM MITHANI AND KOSHI Justices Francis and Myers participating.
ENTERPRISES, INC. D/B/A SONSS
AUTO, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellees Rahim Mithani and Koshi Enterprises, Inc. d/b/a Sonss
Auto recover their costs of this appeal from appellant Sulaiman Thobani.
Judgment entered this 6th day of July, 2016.
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