Wahid Yammine, Individually and D/B/A Yam Yam Trading v. HDH Financial, LLC ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00169-CV
WAHID YAMMINE, INDIVIDUALLY AND D/B/A YAM YAM TRADING, APPELLANT
V.
HDH FINANCIAL, LLC, APPELLEE
On Appeal from the 96th District Court
Tarrant County, Texas
Trial Court No. 96-262931-12, Honorable R. H. Wallace, Presiding
June 12, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Wahid Yammine, individually and d/b/a Yam Yam Trading (Wahid),
appeals from a summary judgment adjudicating title to certain property in HDH Financial
LLC (HDH) and awarding the latter attorney’s fees against Wahid. Two of the issues
before us appear via the trial court’s denial of Wahid’s motion for new trial. They
concern whether HDH served Wahid with notice of the summary judgment setting and
reinstatement of the suit and whether the summary judgment should have been set
aside under Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124
(1939). The third issue involves the award of attorney’s fees. We affirm.
Background
The dispute arose after Wahid released liens attaching to various parcels of
realty. The liens arose from deeds of trust executed in his favor by the landowner.
After the liens were released, the landowner sold the property to HDH via warranty
deeds. After the latter transaction occurred, the trustee under the prior deeds of trust
conveyed to Wahid title to the realty. HDH then sued Wahid to remove the cloud on its
title. So too did it move for summary judgment.
HDH served its motion for summary judgment on Wahid through Wahid’s
attorney of record, John Leslie. The latter filed a response that Wahid apparently did
not like. So another individual named Wally Yammine (Wally) filed his own response on
behalf of Wahid. No one disputes that Wally was neither a lawyer nor legal counsel of
record for Wahid. Thereafter, various events of import ensued.
First, Leslie moved to withdraw as counsel for Wahid. Second, and before the
trial court granted Leslie’s motion to withdraw, Wahid filed for bankruptcy. Third, all
proceedings in the HDH suit were automatically stayed due to the bankruptcy. Fourth,
the bankruptcy court entered an order stating that “[t]he automatic stay . . . [was]
terminated to allow HDH to proceed with the State Court Lawsuit with respect to the
relief requested in HDH’s first amended petition filed in the State Court Lawsuit
regarding the Property (as defined in the Motion and located on 1401, 1405, and 1409
W. Pulaski Street, Fort Worth, Texas).” Fifth, and after the stay was lifted, the motion
for summary judgment was scheduled for hearing and the proceeding was reinstated on
2
the trial court’s docket. Sixth, notice of the hearing date was served upon Leslie.
Seventh, the summary judgment hearing transpired, which resulted in the motion being
granted. Eighth, a final summary judgment was entered adjudicating title of the realty in
HDH and awarding the latter attorney’s fees. Ninth, Wahid moved for a new trial about
a month after the trial court signed the summary judgment. Tenth, a motion substituting
another attorney in place of Leslie was not signed by the trial court until after it denied
the motion for new trial; no order granting Leslie’s motion to withdraw was ever signed.
Issue One
Wahid initially argues that he “. . . received no notice of either the Order
reinstating . . . [the cause after bankruptcy] matter nor the summary judgment hearing to
be held on January 24, 2014. There was no strict compliance with the rules relating to
proper service, rendering the service invalid.” Thus, he believed that he should have
been granted a new trial. We overrule the issue.
A decision to grant or deny a motion for new trial is reviewed under the standard
of abused discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex.
2009). Thus, we cannot interfere with the decision unless the appellant shows it to be
arbitrary, capricious, or a deviation from applicable rules and principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.3d 238, 241-42 (Tex. 1985).
No one disputes that HDH served Leslie with notice of both the trial court’s
reinstatement of the proceeding and the date on which the trial court would hear the
pending summary judgment motion. Nor does anyone dispute that the trial court had
yet to grant Leslie’s motion to withdraw when the aforementioned service occurred.
This is of import because simply moving to withdraw does not mean counsel is no
3
longer attorney of record. The trial court must grant the motion. See Ward v. State, 740
S.W.2d 794, 797 (Tex. Crim. App. 1987); Cooks v. State, 190 S.W.3d 84, 87 (Tex.
App.—Houston [1st Dist.] 2005), aff’d, 240 S.W.3d 906 (Tex. Crim. App. 2007) (noting
that the trial court must permit counsel to withdraw). Indeed, withdrawal being
dependent upon approval of the trial court is implicit in Rule 10 of the Texas Rules of
Civil Procedure. The latter not only requires counsel to file a motion but also imposes
obligations upon him “[i]f the motion is granted.” TEX. R. CIV. P. 10. So too does it
permit the trial court to “impose further conditions upon granting leave to withdraw.” Id.
Because the trial court had yet to grant Leslie’s motion to withdraw, Leslie
remained counsel of record for Wahid when the cause was reinstated and the summary
judgment motion was set for hearing. This entitled HDH to serve notice of those events
upon Wahid via Leslie under Texas Rule of Civil Procedure 21a. TEX. R. CIV. P. 21a(a)
(stating that “[e]very notice required by these rules, and every pleading, plea, motion, or
other form of request required to be served under Rule 21 . . . may be served by
delivering a copy to the party to be served, or the party's duly authorized agent or
attorney of record”). Consequently, we cannot say that the trial court’s refusal to accept
Wahid’s argument regarding notice and the sufficiency of service was unreasonable or
deviated from controlling rules and principles.
Issue Three
Because it influences the outcome of issue two, we next address issue three.
Through it, Wahid posits that “[t]he Motion for Summary Judgment improperly awarded
fees and expenses to HDH, in contravention of the express language of the Agreed
Order Lifting the Automatic Stay from the bankruptcy court.” We overrule the issue.
4
We construe orders in the same manner as contracts. Hemyari v. Stephens, 355
S.W.3d 623, 626 (Tex. 2011). While orders pertaining to the modification of a
bankruptcy stay are strictly construed, Dickinson v. Dickinson, 324 S.W.3d 653, 656
(Tex. App.—Fort Worth 2010, no pet.), we nonetheless “enforce unambiguous orders
literally.” Hemyari v. Stephens, 355 S.W.3d at 626. So too do we strive to afford
meaning to each provision of an order. Id. Finally, interpreting an order implicates a
question of law that we review de novo. MCI Telecomm. Corp. v. Tex. Utils. Elec. Co.,
995 S.W.2d 647, 650-51 (Tex. 1999).
As previously mentioned, the bankruptcy court ordered that “[t]he automatic stay
is terminated to allow HDH to proceed with the State Court Lawsuit with respect to the
relief requested in HDH’s first amended petition filed in the State Court Lawsuit
regarding the Property (as defined in the Motion and located on 1401, 1405, and 1409
W. Pulaski Street, Fort Worth, Texas).” Wahid would have us construe that verbiage as
permitting solely the adjudication of title to the realty at issue. That is, he reads the
order to allow HDH to “proceed with the State Court Lawsuit with respect to the relief
requested . . . regarding the Property.” (Emphasis in original). Yet, his use of the
ellipsis is telling. By doing so, he omits the phrase “in HDH’s first amended petition filed
in the State Court Lawsuit.” We are not free to ignore words appearing in the directive;
again, meaning must be afforded to each provision if possible. More importantly, the
omitted passage describes the measure of relief that HDH was free to pursue. That
measure encompassed the “relief requested in HDH’s amended petition filed in the . . .
lawsuit regarding” the realty at issue. Attorney’s fees were specifically requested in that
5
petition. Therefore, the trial court did not exceed the authority granted it under the order
lifting the automatic stay by awarding HDH attorney’s fees.
Issue Two
In his second issue, Wahid argues that he satisfied the elements of Craddock v.
Sunshine Bus Lines, Inc., and that entitled him to a new trial. We overrule the issue.
Again, the standard of review is one of abused discretion. Dolgencorp of Tex.,
Inc. v. Lerma, supra. Furthermore, the Craddock elements to which Wahid refers
obligated him to establish that 1) the failure to appear at the summary judgment hearing
was neither intentional nor the result of conscious indifference, but due to accident or
mistake, 2) he had a meritorious defense, and 3) granting a new trial would not
occasion delay or otherwise work an injury to HDH. Craddock v. Sunshine Bus Lines,
Inc., 133 S.W.2d at 126.
Regarding the first element, Wahid states that he failed to appear at the hearing
because he did not get notice of it or the order reinstating the suit. As we concluded
under issue one, though, he did receive notice via his attorney of record, Leslie. As for
the matter of a meritorious defense, he argues that the trial court exceeded the scope of
the order lifting the bankruptcy stay when it awarded attorney’s fees. As we concluded
under issue three, though, the trial court did not. Consequently, we cannot say that the
trial court abused its discretion in rejecting this ground as basis for a new trial.
6
Accordingly, the judgment is affirmed.1
Brian Quinn
Chief Justice
1
We do not ignore the argument proffered in Wahid’s reply brief and pertaining to the timing of
the summary judgment hearing. The argument consists of the notion that the setting of the summary
judgment for hearing on the day selected was defective because “Appellee apparently reset the hearing
date” before the trial court reinstated the case. In response, we first note that an appellant cannot raise
new issues via a reply brief. Fox v. City of El Paso, 292 S.W.3d 249, 251 (Tex. App.—El Paso 2009, pet.
denied). This appears to be a previously unmentioned issue. Second, Wahid cites no authority
supporting his position, contrary to Texas Rule of Appellate Procedure 38.1(i); given this instance of
inadequate briefing, the issue was waived. Bullock v. American Heart Ass’n, 360 S.W.3d 661, 665 (Tex.
App.—Dallas 2012, pet. denied). Third, in addressing the matter, the trial court explained that “[b]ut my
practice is, when we receive a notice that a case -- that a bankruptcy stay is effectively precluding a case
from going forward, we enter an order removing it from the active docket and placing it on a, quote,
inactive docket, because somewhere in the monthly statistics that are ground out every month there's a
distinction. It doesn't actually close the case. It's not like a final judgment where the clerk closes the file.”
This suggests that the suit was simply dormant for purposes of statistics. And without the benefit of
authority holding otherwise, we forego the opportunity to hold that removing a cause from the active
docket for statistical reasons voids any action pertaining to that suit until replaced on the active docket.
7