Michael A. Nasr v. John David Whitehead ( 2022 )

Affirmed and Opinion Filed August 23, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00766-CV
MICHAEL A. NASR, Appellant
V.
JOHN DAVID WHITEHEAD, Appellee
On Appeal from the 101st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-03670
MEMORANDUM OPINION
Before Justices Myers, Molberg, and Garcia
Opinion by Justice Molberg
Appellant Michael A. Nasr appeals the trial court’s June 4, 2020 order
dismissing with prejudice his claims against appellee John David Whitehead. Nasr
asks us to reverse and remand because (1) he was denied due process, (2) the order
is void because he had withdrawn his consent to settle, and (3) the trial court lacked
the authority to dismiss his claim. Because error was not preserved, we affirm the
trial court’s June 4, 2020 order of dismissal with prejudice in this memorandum
opinion. See TEX. R. APP. P. 33.1, 47.4.
I. BACKGROUND
Nasr and Whitehead are former domestic and business partners, according to
Nasr’s original petition.
Nasr sued Whitehead on March 14, 2019, asserting claims for breach of
fiduciary duty, fraud by nondisclosure, and breach of two agreements—a company
agreement involving a limited liability company he alleged the two formed, and an
oral agreement regarding charges allegedly made on a joint credit card.1 Whitehead
answered, generally denied Nasr’s claims, and asserted affirmative defenses.
The parties mediated their dispute on February 6, 2020, and reached an
agreement. The two signed a memorandum of settlement on that date which stated,
in part, that the parties agreed “to execute and deliver such additional agreements
and documents as shall be necessary to carry out the purposes of this agreement.”
On separate dates in March 2020,2 the parties signed a settlement agreement
which stated, in part, that “[t]he Parties agree to dismiss all their claims in this
Litigation with prejudice.”3
On April 24, 2020, Whitehead moved for entry of an order of dismissal with
prejudice, stating that the parties reached an agreement to settle and compromise
1
Nasr’s original petition also alternatively alleged quantum meruit and unjust enrichment claims.
2
Whitehead signed the settlement agreement on March 9, 2020; Nasr signed it ten days later. The
settlement agreement stated that it “shall become effective on the last signature date set forth below or the
last date of transmission, whichever is later.”
3
The settlement agreement defined “this Litigation” as the parties’ outstanding claims against each
other in the District Court of Dallas County, Texas, under Cause No. DC-19-03670, styled Michael A. Nasr
v. John David Whitehead.”
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their differences in this lawsuit and attaching a copy of the memorandum of
settlement and settlement agreement. The trial court signed an order of dismissal
the same day.
A day earlier, Nasr had filed a second amended petition which removed all
prior claims and added a new claim: a breach of contract claim based on
Whitehead’s alleged breach of the parties’ settlement agreement.4 That petition
alleged that Whitehead breached the parties’ settlement agreement by defaulting on
a promissory note and by failing to take certain actions regarding the parties’
business tax return.5
On May 12, 2020, two weeks after the court’s April 24, 2020 order of
dismissal, Nasr filed a motion to modify judgment, noting his recent filing of his
second amended petition, attaching copies of the parties’ settlement agreement and
other documents, and arguing the trial court should vacate its April 24, 2020 order
and reform it to exclude the dismissal of the claim in his second amended petition.
The following day, the trial court entered two orders, which together granted
Nasr’s motion and vacated and reformed the April 24, 2020 order of dismissal.
4
Nasr’s second amended petition stated, in part, “On February 6, 2020, the parties agreed to settle all
claims and disputes between them, including those alleged in [Nasr’s] Original Petition” and “[t]he parties
memorialized the terms of their agreement in a separate settlement agreement” executed by the parties and
approved by their attorneys.
5
Specifically, Nasr alleged that, under the settlement agreement, Whitehead was required but failed to
make an initial payment on the note by March 1, 2020, and was required but failed to take certain actions
regarding the parties’ business tax return by March 10, 2020.
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Roughly three weeks later, on June 2, 2020, Whitehead filed a motion to
reconsider, asking the trial court to reconsider the May 13, 2020 order reforming the
order of dismissal and to dismiss the suit in its entirety. The trial court granted that
motion, and on June 4, 2020, the court signed an order granting dismissal with
prejudice—the order at issue here.
This appeal followed. On July 2, 2020, Nasr filed a notice of appeal and a
motion to reconsider the order, arguing that the court improperly granted relief on
claims not subject to the settlement agreement, namely his claims that Whitehead
had breached the settlement agreement. The trial court did not rule on Nasr’s motion
to reconsider, and it was overruled by operation of law.6
II. ISSUES AND ANALYSIS
In three issues, Nasr asks us to vacate or reverse the trial court’s order of
dismissal and to remand the case for further proceedings because (1) the trial court
denied him due process by dismissing his petition absent notice or hearing, (2) the
trial court’s order is void because he withdrew his consent to settle, and (3) the trial
court lacked the authority to dismiss his claim absent summary judgment or trial.
Whitehead disputes those arguments and argues Nasr failed to preserve error on all
three issues.
6
See TEX. R. CIV. P. 329b(c), (g).
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Applicable Standards for Preservation of Error
To preserve an issue for appeal, a party must make a timely, specific objection
or motion in the trial court that states the grounds for the desired ruling with
sufficient specificity to make the trial court aware of the complaint. See TEX. R.
APP. P. 33.1(a) (stating prerequisites to presenting complaint for appellate review);
Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) (“As a rule, a claim, including
a constitutional claim, must have been asserted in the trial court in order to be raised
on appeal.”) (citations omitted).
Also, “[t]o preserve error on appeal, a party’s argument on appeal must
comport with its argument in the trial court.” Knapp v. Wilson N. Jones Mem’l
Hosp., 281 S.W.3d 163, 170 (Tex. App.—Dallas 2009, no pet.) (op. on reh’g)
(citations omitted).
In a civil case, “the overruling by operation of law of a motion for new trial
or a motion to modify the judgment preserves for appellate review a complaint
properly made in the motion, unless taking evidence was necessary to properly
present the complaint in the trial court.” See TEX. R. APP. P. 33.1(b).
Application
Nasr did not address error preservation in his principal brief. In his response
brief, Whitehead argued, in part, that Nasr failed to preserve error on the three issues
presented here, which Nasr disputed in his reply brief. As support, Nasr cited his
May 12, 2020 motion to modify and his July 2, 2020 motion to reconsider.
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In his May 12, 2020 motion, Nasr stated, in part:
Due Process requires that the claims contained in [Nasr’s second
amended petition] be heard and that [Nasr] be able to present evidence,
call witnesses, cross examine witnesses, know the opposing evidence,
and have a decision based on the evidence presented decided by an
unbiased jury regarding these claims. The fundamental requisite of due
process of law is the opportunity to be heard. See Grannis v. Ordean,
234 U.S. 385, 394, 58 L. Ed. 1363, 34 S. Ct. 779 (1914) citing Louisville
& Nashville R.R. Co. v. Schmidt, 177 U.S. 230, 236 (1900); Simon v.
Craft, 182 U.S. 427, 436 (1901). [Nasr] has not been heard on these
matters, nor was he given the opportunity to be heard.
The next day, the trial court granted Nasr’s motion and, as Nasr requested,
vacated and reformed its April 24, 2020 order. After Whitehead moved to reconsider
that action, the trial court entered the June 4, 2020 order of dismissal.
In his July 2, 2020 motion to reconsider the June 4, 2020 order of dismissal,
Nasr made substantive arguments regarding the scope of the settlement agreement’s
release, but he did not make any arguments regarding the three issues he now raises
in this appeal. Nasr’s motion included roughly two pages of alleged facts, three lines
that ask the trial court to take judicial notice of the entire contents of its file, and a
two-page, five-paragraph argument that begins with a paragraph summarizing the
procedural history followed by four paragraphs that state, in their entirety:
Because the claims in [Nasr’s second amended petition] were
specifically NOT released by the [settlement agreement] and/or
litigated, they could not have—BY DEFINITION—been released and
subject to dismissal by this Court on that basis. [The] release in the
[settlement agreement] states,
“provided, however, that the foregoing released matters shall not
include claims arising directly from a breach of this Agreement
by WHITEHEAD. . . ”
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The only matters being litigated in [Nasr’s second amended petition]
are matters arising from [Whitehead’s] breach of the [settlement
agreement]. On this basis alone, this Court’s ruling on May 13, 2020
was just and proper under the law.
On June 2, 2020[,] [Whitehead] filed his own motion to reconsider the
Court’s granting of [Nasr’s] motion to reconsider. Without notice or
hearing, on June 4, 2020, the court granted [Whitehead’s] motion and
entered [the order of dismissal at issue].
In short, [Whitehead] argued, that the [settlement agreement] language
dismissed all claims including claims that could have been brought.
This argument is misguided and misses the point. The matters being
litigated in [Nasr’s] Second Amended Petition COULD NOT HAVE
BEEN BROUGHT because they relate solely to Defendant’s breach of
the [settlement agreement]. It is axiomatic that a breach of the
[settlement agreement] could not have occurred until after both parties
executed the [settlement agreement]. Moreover, [Whitehead] WAS
NOT released for claims arising directly from a breach of the
[settlement agreement] (see quote supra). Again, [Nasr’s] Second
Amended Petition is attempting to litigate [Whitehead’s] breach of the
[settlement agreement].
In his reply brief on appeal, in addition to noting that his May 12, 2020 motion
included a due process argument, Nasr noted that his July 2, 2020 motion asked the
trial court to take judicial notice of its file contents, which, Nasr argued, “means the
previous claims of due process in [his May 12, 2020 motion] were attached to and
included by reference in [his July 2, 2020 motion].”
We disagree with Nasr’s inclusion-by-reference argument because it renders
meaningless the requirement that a “timely” and “specific” objection or motion be
made with “sufficient specificity to make the trial court aware of the complaint.”
See TEX. R. APP. P. 33.1(a)(1)(A). Based on the record before us, we conclude that
Nasr failed to preserve error on the three issues presented on appeal because Nasr
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did not make a timely, specific objection or motion in the trial court with sufficient
specificity to make the trial court aware of those issues and because his arguments
on appeal do not comport with his argument in the trial court. See TEX. R. APP. P.
33.1(a)(1)(A); Dreyer, 871 S.W.2d at 698; Knapp, 281 S.W.3d at 170.
As reflected in his July 2, 2020 motion, Nasr’s only objections to the June 4,
2020 order of dismissal below had to do with the settlement agreement’s scope and
substantive effect,7 not procedural matters regarding due process, consent to settle,
or the trial court’s authority to enter the order. Nasr cannot complain on appeal about
different alleged errors in an order that he did not give the trial court a chance to
correct. See TEX. R. APP. P. 33.1(a)(1)(A).
III. CONCLUSION
We overrule each of Nasr’s issues and affirm the trial court’s June 4, 2020
order of dismissal with prejudice.
/Ken Molberg/
KEN MOLBERG
200766f.p05 JUSTICE
7
We express no opinion on the settlement agreement’s scope or substantive effect here.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MICHAEL A. NASR, Appellant On Appeal from the 101st Judicial
District Court, Dallas County, Texas
No. 05-20-00766-CV V. Trial Court Cause No. DC-19-03670.
Opinion delivered by Justice
JOHN DAVID WHITEHEAD, Molberg. Justices Myers and Garcia
Appellee participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee JOHN DAVID WHITEHEAD recover his
costs of this appeal from appellant MICHAEL A. NASR.
Judgment entered this 23rd day of August, 2022.
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