Charles Watson v. Tiffanie L Purvis and Amad Al-Banna

Affirmed in part, Reversed and Rendered in part, and Memorandum Opinion
filed July 9, 2019.
In the
Fourteenth Court of Appeals
NO. 14-18-00132-CV
CHARLES WATSON, Appellant
v.
TIFFANIE L. PURVIS AND AMAD AL-BANNA, Appellees
TIFFANIE L. PURVIS, Appellant
v.
CHARLES WATSON, Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2015-28746
MEMORANDUM OPINION
The crux of these two consolidated appeals concerns the breach of a rule 11
settlement agreement recorded in open court. See Tex. R. Civ. P. 11. The trial court
granted traditional summary judgment in favor of Charles Watson and against
Tiffanie L. Purvis.
In her appeal, Purvis argues that the trial court erred by granting Watson’s
motion for summary judgment because fact issues exist regarding enforceability of
the settlement agreement and Purvis’s affirmative defenses. Purvis further contends
that the trial court erred in its awards against her for actual damages, pre-judgment
interest, and costs, and by failing to compel Watson’s payment of attorney’s fees
previously awarded to Purvis under rule 91a. See Tex. R. Civ. P. 91a. In his appeal
against Purvis, Watson challenges the trial court’s decisions to deny his motion for
leave to amend his petition and to grant Purvis’s motion to exclude evidence
regarding Watson’s attorney’s fees. We sustain Purvis’s issues relating to actual
damages and pre-judgment interest, and otherwise overrule her issues. We overrule
Watson’s issues against Purvis.
Watson also brings an appeal against appellee Amad Al-Banna. Watson
challenges the trial court’s granting of no-evidence summary judgment in favor of
Al-Banna. Watson also argues that counsel for Al-Banna violated rule 199.5(d–h)
during Al-Banna’s deposition. See Tex. R. Civ. P. 199.5(d–h). We overrule
Watson’s issues against Al-Banna.
Accordingly, we reverse the portions of the trial court’s judgment awarding
principal damages and pre-judgment interest. We render judgment that Watson
recover from Purvis “Principal Damages owed under the Recorded Settlement
Agreement of $12,500.00” and “Pre-judgment Interest at the rate of 5% for each of
the first two missed payments of $2,500.00, calculated from the date of suit filing
(August 23, 2017) until the day before judgment (February 1, 2018), and for each of
the three remaining missed payments of $2,500.00, respectively calculated from the
date of each missed payment (September 15, October 15, and November 15, 2017)
2
until February 1, 2018, which is equivalent to $222.64.” We otherwise affirm the
trial court’s judgment as challenged.
I. BACKGROUND
This case has a storied background. We discuss only what is pertinent on
appeal.
Watson and Purvis engaged in a romantic and real-estate business relationship
that ultimately soured. In May 2015, Watson brought claims against Purvis and her
company Tiffanie Purvis, Inc. (TP, Inc.) d/b/a Texas Real Estate & Co. for fraud,
breach of fiduciary duty, conversion, misappropriation, and conspiracy. Purvis
brought counterclaims against Watson for breach of fiduciary duty, quantum meruit,
unjust enrichment, and intentional infliction of emotional distress. Watson also
brought claims against other entities and individuals, including Al-Banna, for
misappropriation based on conspiracy liability. Watson alleged that Al-Banna
participated in a conspiracy to use Watson’s name in certain real-estate transactions
without his permission. The trial court granted various defendants’ motions for
summary judgment,1 including a no-evidence motion filed by Al-Banna.
On May 30, 2017, as trial was set to begin, Watson and Purvis entered into a
settlement agreement on the record. Purvis was to pay Watson “a sum of $90,000 at
$2,500 each and every month until paid in full” and return any of Watson’s personal
property “on Mr. Watson’s list” from two Houston properties “that is contained in
the storage facility.” The parties agreed there would “be general mutual releases of
all claims arising out of any facts, known or unknown, matured or unmatured.” The
1
We recently affirmed one of these summary judgments, which the trial court had severed.
See Watson v. Talia Heights, LLC, 566 S.W.3d 326, 328, 331 (Tex. App.—Houston [14th Dist.]
2018, no pet.) (concluding that no-evidence summary judgment on Watson’s claim for
misappropriation based on conspiracy was proper).
3
parties also agreed to later “in good faith” address “an ongoing dispute with respect
to Waller [County] in terms of some of that personal property.”
Counsel appearing for Watson stated: “On that representation, I believe we
have a settlement.” Counsel appearing for Purvis and TP, Inc. stated: “Obviously,
subject to final paperwork and everything. Even though this would be an enforceable
agreement on the record, there may be additional provisions that we want in there.”
The trial court stated: “Okay. And for our purposes now, we’re going to move the
case to hold for judgment status.” Counsel for Watson further stated: “Only the
parties before you are released, however. I just want to make sure that that’s clear.
No party not represented by any of these parties is part of this settlement.” Counsel
for Purvis interjected that he wanted to “address” parties Wanda Reyna and Debra
Zecchin, whom he also represented, to make sure that they were “released as part of
this settlement.” Counsel for Purvis further stated: “Well, when I—when I—we had
talked about it being a global settlement. That was the intent of that. You know,
obviously, they’re not appearing because they’ve been dismissed on summary
judgment.” Counsel for Watson replied: “Mr. Watson’s not going to be silly about
this. I mean, Reyna and Zecchin are fine.” Counsel for Purvis responded: “Okay.”
Counsel for Watson later stated: “Okay. Then we have an understanding.” Counsel
for Purvis replied: “Okay.”
A few weeks later, counsel for Purvis emailed counsel for Watson: “As we
discussed, I am still waiting for client approval on the settlement document . . . [b]ut
this email confirms that the first $2,500 payment will be made on or before July 15,
2017, and the personal property that is being released pursuant to the settlement will
be tendered by that same date.” Purvis, however, did not provide any payment or
release Watson’s personal property. Instead, Purvis filed a motion for trial setting.
The trial court granted Purvis’s motion for trial setting and granted Watson
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leave to file a fourth amended petition. Trial was set for January 15, 2018. Watson
filed his fourth amended petition against Purvis for breach of contract. Watson then
filed a fifth amended petition against Purvis, TP, Inc., Reyna, and Zecchin2 for
breach of contract and declaratory judgment. Watson filed a traditional motion for
summary judgment against Purvis. Purvis filed a response.
On November 16, 2017, Watson filed a motion for leave to file a sixth
amended petition to assert fraud claims against counsel for Purvis and his law firm.
In his proposed sixth amended petition, Watson sought to add Purvis’s trial counsel
and his law firm as defendants and bring fraud claims against them in connection
with the recorded settlement agreement. The trial court signed an interlocutory order
granting Watson’s traditional motion for summary judgment against Purvis on
December 6, 2017.
On the morning of what was to be an evidentiary hearing on Watson’s
attorney’s fees, Purvis filed a motion to exclude evidence regarding attorney’s fees.
The trial court sustained Purvis’s objection at the hearing. The trial court signed its
final judgment and an order denying Watson leave to file his sixth amended petition
on February 2, 2018. Watson and Purvis timely appealed. Watson filed his appeal
against Purvis and Al-Banna; Purvis filed her appeal against Watson.
II. ANALYSIS
A. Purvis’s appeal
1. The rule 11 settlement agreement is binding and enforceable.
In her first issue, Purvis argues the trial court erred in concluding that the
transcript was a binding and enforceable rule 11 settlement agreement. Purvis
contends that the parties did not agree on the essential terms of the purported contract
2
TP, Inc., Reyna, and Zecchin are not parties on appeal.
5
and the transcript “is missing global release language and other material terms.”
Purvis also argues there is a fact issue regarding whether the parties’ respective LLCs
were intended to be part of the global settlement. Viewed as a whole, we conclude
that the transcribed agreement is binding and enforceable.
Texas Rule of Civil Procedure 11 provides: “Unless otherwise provided in
these rules, no agreement between attorneys or parties touching any suit pending
will be enforced unless it be in writing, signed and filed with the papers as part of
the record, or unless it be made in open court and entered of record.” Tex. R. Civ. P.
11. Purvis does not dispute that the purported settlement was made in open court and
entered of record.
A rule 11 settlement agreement must contain all the essential terms of the
settlement. Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995). Essential terms
of a rule 11 settlement agreement include payment terms and release of claims. See
id. at 460–61. We construe rule 11 settlement agreements as we do any other
contract. MKM Eng’rs, Inc. v. Guzder, 476 S.W.3d 770, 778 (Tex. App.—Houston
[14th Dist.] 2015, no pet.). Here, the plain language of the transcript reflects that
Purvis would pay Watson $90,000 in monthly payments of $2,500 and return certain
of Watson’s personal property; that Purvis and Watson would enter general mutual
releases of all claims arising out of any facts, known or unknown, matured or
unmatured; and that Purvis and Watson would work in good faith to address the
remaining claims pertaining to personal property in Waller County. The settlement
therefore included the essential terms of payment and release of claims. See Padilla,
907 S.W.2d at 460–61; MKM Eng’rs, 476 S.W.3d at 778, 782.
According to Purvis, however, certain language in the transcript confirms that
essential terms were missing. First, Purvis points to the statement that “[t]here will
be general mutual releases” and argues this “brief recitation” does not “comprise[]
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such a release.” We rejected a similar argument in MKM Engineers. See 476 S.W.3d
at 781–82 (rejecting argument that rule 11 settlement agreement was missing
essential and material term because it “provide[d] only that full releases ‘will’ be
provided in the future”). Moreover, the transcript contains clear language that the
parties before the trial court “are released” as “part of this settlement” and that Reyna
and Zecchin “are fine” and thus “released as part of this settlement.”
Purvis next points to this language: “Obviously, subject to final paperwork
and everything. Even though this would be an enforceable agreement on the record,
there may be additional provisions that we want in there.” According to Purvis,
“[t]he foregoing acknowledges that the payment amount and few other terms on the
record are binding, but that the parties necessarily would need further work to
negotiate and fully document the balance of the terms.” Purvis also argues that
additional “good faith” efforts would be required for the parties to address the Waller
County litigation. Purvis’s position, however, is based on an incorrect premise—
parties need not agree to all terms of a settlement agreement and memorialize them
in a formal writing before there can be an enforceable agreement. See id. at 778;
Robinson v. Cason, No. 01-11-00916-CV, 2013 WL 3354651, at *7 (Tex. App.—
Houston [1st Dist.] July 2, 2013, no pet.) (mem. op.). Here, the language that “this
would be an enforceable agreement on the record”; multiple references to the
“settlement”; and the statement they had “an understanding” reflect that the parties
intended their agreement to be a present, binding agreement. That Watson and Purvis
would reduce their agreement to “final paperwork” and left “additional provisions”
to be (possibly) negotiated and agreed later does not render the transcribed
agreement unenforceable. See MKM Eng’rs, 476 S.W.3d at 779, 781–82 (no fact
issue raised on enforceability even though “the parties contemplated taking
additional actions and executing a final settlement agreement at a later date” and
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when “other non-essential or collateral matters [were] left for future negotiation”).
Purvis also contends that the intent of the parties’ “global settlement” was to
reach the broader scope of the parties’ business dealings within a final
comprehensive written settlement agreement. However, the plain language of the
transcript indicates that the “global” nature of the settlement referred to its inclusion
of Reyna and Zecchin. We also do not agree with Purvis that counsel for Watson’s
statement that Watson was “not going to be silly about this” referred to “the context
of crafting the full scope of the release” rather than the context of including Reyna
and Zecchin as parties to the settlement.
Although Purvis does not assert that the language in the transcript is
ambiguous, she argues—primarily based on Watson’s testimony concerning his ties
to Purvis’s various businesses—there is a fact issue on whether the parties intended
to include their respective LLCs to be part of the “global settlement.” However,
intent that is clear and unambiguous on the face of the agreement may be determined
as a matter of law. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). Nothing
in the transcript indicates that the settlement agreement was intended to reach any
further than the parties at hand (plus Reyna and Zecchin) and all their claims. Nor
does anything in the transcript indicate the parties intended that their settlement
agreement not be enforceable until their “respective LLCs” were addressed. We
therefore must reject Purvis’s attempt to alter the parties’ expression of their intent.
See 1st Res. Grp., Inc. v. Olukoga, No. 02-16-00136-CV, 2017 WL 218290, at *3
(Tex. App.—Fort Worth Jan. 19, 2017, no pet.) (mem. op.) (appellant’s evidence
contrary to expression of parties’ intent in settlement was not admissible); MKM
Eng’rs, 476 S.W.3d at 781 (same).
Finally, according to Purvis, the fact that other terms were included in the
draft settlement agreement and mutual release Purvis sent to Watson in the weeks
8
following the transcribed agreement demonstrates these terms were material. We
disagree. That additional, non-essential terms which may have been important to
Purvis, such as the release of the parties’ businesses, were included but not resolved
in the draft settlement and release does not raise a fact issue concerning the
enforceability of the previously dictated terms. See MKM Eng’rs, 476 S.W.3d at
782; Robinson, 2013 WL 3354651, at *7. Moreover, “consistent with an
understanding that a binding agreement had been reached,” while he was still
drafting the final settlement document, counsel for Purvis confirmed by email to
counsel for Watson that Purvis planned to make her first $2,500 payment and tender
Watson’s personal property by July 15, 2017. See MKM Eng’rs, 476 S.W.3d at 782.
2. Purvis failed to raise a fact issue on her defenses.
Purvis argues that even if the transcribed agreement is valid and enforceable,
she raised sufficient fact issues to preclude summary judgment regarding her
affirmative defenses of condition precedent, unilateral mistake, and mutual mistake.
We disagree.
Condition precedent. Purvis first contends that she was not obligated to pay
and complete the settlement with Watson because Watson failed to fulfill a necessary
condition precedent. See Hohenberg Bros. v. George E. Gibbons & Co., 537 S.W.2d
1, 3 (Tex. 1976) (“Conditions precedent to an obligation to perform are those acts or
events, which occur subsequently to the making of a contract, that must occur before
there is a right to immediate performance and before there is a breach of contractual
duty.”). Purvis does not explain what language in the transcribed agreement
conditions Purvis’s obligation to pay Watson on Watson’s negotiation and signing
of a global, written settlement. Nor have we located any such language. Instead, our
plain reading of the transcript establishes: (1) that Purvis promised to pay Watson
$90,000 in installments, return his property, and release all her claims and (2) that
9
Watson promised to release all his claims. These are covenants, not conditions
precedent. See Azad v. MRCO, Inc., No. 14-12-00165-CV, 2013 WL 6700285, at *7
(Tex. App.—Houston [14th Dist.] Nov. 7, 2013, pet. denied) (subs. mem. op)
(conditions precedent are to be avoided when possible); McMahan v. Greenwood,
108 S.W.3d 467, 484–85 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (op.
on reh’g).
Next, Purvis argues that she was mistaken or both parties mutually were
mistaken regarding the scope and intent of the settlement agreement.
Unilateral mistake. To avoid summary judgment, Purvis needed to raise a
genuine fact issue on each of the elements of unilateral mistake: (1) the mistake is
of so great a consequence that to enforce the contract would be unconscionable;
(2) the mistake relates to a material feature of the contract; (3) the mistake must have
been made regardless of the exercise of ordinary care; and (4) the parties can be
placed in status quo in the equity sense, i.e., rescission must not result in prejudice
to the other party except for the loss of his bargain. See James T. Taylor & Son, Inc.
v. Arlington Indep. Sch. Dist., 335 S.W.2d 371, 373 (Tex. 1960). Purvis has not
provided, and we have not located, any authority in which enforcing a similar
“mistake” (that a settlement included a general release of all claims against the
parties to the case and not an additional “global” release of all claims against all
business interests of the parties) was found to be unconscionable. In addition, we
already have concluded that Watson’s signing of a written global settlement which
would release all the parties’ respective LLCs was not a material term of the
agreement.
Mutual mistake. To avoid summary judgment, Purvis needed to raise a
genuine fact issue on each element of mutual mistake: (1) a mistake of fact, (2) held
mutually by the parties, (3) which materially affects the agreed-upon exchange. See
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Will. v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). “To prove a mutual mistake,
however, the evidence must show that both parties were acting under the same
misunderstanding of the same material fact.” Walden v. Affiliated Comput. Servs.,
Inc., 97 S.W.3d 303, 326 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (op.
on reh’g). We do not determine mutual mistake based on self-serving statements of
the parties’ intent, but rather solely on the objective circumstances surrounding the
execution of the contract. See Williams, 789 S.W.2d at 264. Only under “narrow
circumstances” will a party be able to raise a fact issue to set aside a contract based
on mutual mistake. See id. at 265.
Again, we already have concluded that a written global release of all the
parties’ businesses was not a material term. Moreover, the objective facts here do
not fit the narrow circumstances recognized in Williams. Williams involved an
individual who executed a full settlement release immediately after an automobile
accident and later discovered she had sustained head and neck injuries, which neither
party knew at the time of the release. See id. at 264. Here, both parties were
represented by counsel and discussed the parties’ releases in their settlement
negotiations. In a phone call, Watson offered “a ‘global settlement,’ including
mutual releases.” In an email, Watson offered “[m]utual release and dismissal of the
Harris county 270th and Waller County 506th[]litigation with prejudice.” Counsel for
Purvis stated on the record that the “intent” of the “global settlement” about which
the parties “had talked” was to include the release of Reyna and Zecchin. Viewed in
the light most favorable to Purvis, she has not shown any mutually held
misunderstanding of the same fact.
Purvis cites Volpe v. Schlobohm, 614 S.W.2d 615 (Tex. Civ. App.—
Texarkana 1981, no writ), arguing that because she and Watson “were working
under different conceptions as to the same matter,” this amounted to a mutual
11
mistake because there was no meeting of the minds. However, the Volpe court
recognized that “[o]f course, this type of mistake will justify relief only if the
expression or writing evidencing the purported agreement is uncertain and
ambiguous, for if there is no ambiguity with respect to the written or oral expression
of the terms neither party will be heard to say that, by his subjective intent, he meant
something different from what was actually expressed.” Id. at 618. The transcribed
agreement is not ambiguous.
Purvis also contends that her unilateral mistake, when Watson had knowledge
of that mistake, is equivalent to mutual mistake. See Davis v. Grammer, 750 S.W.2d
766, 768 (Tex. 1988). Even assuming for the sake of argument there was any
unilateral mistake by Purvis, nothing in the record reveals that Watson knew Purvis
mistakenly believed the transcribed settlement included a release of claims for all
the parties’ business interests. See Atl. Lloyds Ins. Co. v. Butler, 137 S.W.3d 199,
213 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (op. on reh’g) (no fact issue
raised when record did not support unilateral mistake by plaintiffs as to terms of
settlement agreement of which defendants were aware). Also, we find Marcuz v.
Marcuz, 857 S.W.2d 623 (Tex. App.—Houston [1st Dist.] 1993, no writ), cited by
Purvis, distinguishable. Marcuz involved a property settlement agreement in a
divorce proceeding. There, the evidence showed the wife and her counsel intended
that the husband receive all shares of a certain stock in return for alimony payments,
but the agreement mistakenly omitted five shares of stock. Id. at 628. Unlike in
Marcuz, Purvis was not attempting to show mutual mistake based on circumstances
in which Watson or his counsel intended for the settlement release to reach all the
parties’ business interests. Cf. id.
We overrule Purvis’s first issue.
3. Watson did not conclusively establish $90,000 in damages.
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In her second issue, Purvis argues that the trial court erred in awarding Watson
damages consisting of an immediate payment of $90,000—comprising all 36
installment payments—when most of those payments were not yet due.3 We agree.
Where the terms call for periodic payments during the course of an agreement,
a cause of action for such payments may arise at the end of each installment period.
Hooks v. Samson Lone Star, Ltd. P’ship, 457 S.W.3d 52, 68 (Tex. 2015). An obligee
is entitled to maintain his action for and receive damages all at one time for the entire
breach only when a party obligated to make future installment payments absolutely
repudiates the obligation without just excuse. Taylor Publ’g Co. v. Sys. Mktg. Inc.,
686 S.W.2d 213, 217 (Tex. App.—Dallas 1984, writ ref’d n.r.e.). Repudiation or
anticipatory breach is a positive and unconditional refusal to perform the contract in
the future, expressed either before performance is due or after partial performance.
Scott Pelley P.C. v. Wynne, No. 05-15-01560-CV, 2017 WL 3699823, at *9 (Tex.
App.—Dallas Aug. 28, 2017, pet. denied) (mem. op.).
Watson does not dispute that the settlement agreement is an installment
contract. In his traditional motion for summary judgment, however, Watson did not
allege, much less attempt to prove, that Purvis absolutely repudiated or committed
an anticipatory breach of all the monthly installments of $2,500 totaling $90,000
under the settlement agreement. See id. (elements of repudiation or anticipatory
breach are: (1) defendant repudiated obligation, (2) without just excuse, and (3)
plaintiff was damaged from breach). Watson did not prove there was no genuine
issue of material fact such that he was entitled as a matter of law to contract damages
of the entire $90,000. See Tex. R. Civ. P. 166a(c); McConnell v. Southside Indep.
Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993) (motion for traditional summary
3
Purvis raised this objection in her partial motion to reconsider the order granting summary
judgment and in her response to Watson’s motion for entry of final judgment.
13
judgment must stand or fall on its own merits). Therefore, the trial court erred by
awarding Watson principal damages of $90,000.
Given that each monthly installment was to be $2,500, when the evidence
showed that Purvis’s initial monthly payment was to be paid on July 15, 2017, and
that she had missed five monthly payments at the time of summary judgment,
Watson was entitled to damages of $12,500.
We sustain Purvis’s second issue.4
4. The trial court erred in its award of pre-judgment interest.
In her related third issue, Purvis argues the trial court erred by awarding
Watson $1,997.26 in pre-judgment interest because that amount includes interest on
damages Watson had not sustained at the time of the judgment.5 We agree.
The purpose of pre-judgment interest is to fully compensate the injured party
when such interest represents additional damages for lost use of the money due as
damages. See Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 812 (Tex.
2006). In the context of an installment contract, we have calculated pre-judgment
interest based on the date suit was filed for any breach as of that date, and based on
the individual accrual date for any additional post-suit breach. See Garden Ridge,
L.P. v. Clear Lake Ctr., L.P., 504 S.W.3d 428, 453 (Tex. App.—Houston [14th Dist.]
2016, no pet.).
As indicated above, at the time of summary judgment, Purvis had missed five
installment payments. Each of Purvis’s first two $2,500 payments began to accrue
4
We therefore do not reach Purvis’s alternative argument under this issue that the damages
award did not account for the discounted present value of future installment payments. See Tex.
R. App. P. 47.1.
5
Purvis raised this objection in her response to Watson’s renewed motion for entry of final
judgment.
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pre-judgment interest on the date suit was filed, August 23, 2017. The other three
$2,500 payments did not start accruing pre-judgment interest until the dates those
payments were missed, September 15, October 15, and November 15, 2017,
respectively. See id. Therefore, the trial court erred by awarding Watson pre-
judgment interest of $1,997.26 based on total principal damages of $90,000 and a
single accrual date of August 23, 2017.
We sustain Purvis’s third issue.
5. The trial court did not abuse its discretion in its award of taxable costs.
In her fourth issue, Purvis argues that the trial court abused its discretion when
it signed a post-judgment order on March 27, 2018, setting a security amount that
included taxable costs incurred prior to the date of the settlement. Purvis does not
dispute that Watson was successful on his breach-of-contract claim, but asserts that
was his only success after he abandoned his other claims. Watson responds that rule
131 allows for an award to him as the successful party of “all costs incurred therein,
except where otherwise provided.” See Tex. R. Civ. P. 131.
The allocation of costs in the judgment cannot be overturned on appeal unless
the trial court abused its discretion. Operation Rescue-Nat’l v. Planned Parenthood
of Hous. & Se. Tex., Inc., 937 S.W.2d 60, 86 (Tex. App.—Houston [14th Dist.] 1996,
no writ), aff’d as modified, 975 S.W.2d 546 (Tex. 1998). A “successful party” is
“one who obtains judgment of a competent court vindicating a civil right or claim.”
City of Houston v. Woods, 138 S.W.3d 574, 581 (Tex. App.—Houston [14th Dist.]
2004, no pet.). “When determining whether court costs are appropriate, a court
should consider the judgment rather than the verdict.” May v. Ticor Title Ins., 422
S.W.3d 93, 102 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Here, the judgment
is rendered only against Purvis, and Watson is the only successful party. Purvis does
not cite, and we have not located, any authority requiring the trial court to make any
15
“proportionate reduction” in Watson’s costs based on the degree of his success. See
Operation Rescue-Nat’l, 937 S.W.2d at 87. Purvis has not shown that the trial court
abused its discretion by not agreeing to reduce court costs when it set the security
amount.
We therefore overrule Purvis’s fourth issue.
6. We do not consider Purvis’s fifth issue.
In her fifth issue, Purvis contends that the trial court erred when it failed to
compel payment of attorney’s fees previously awarded to her pursuant to Texas Rule
of Civil Procedure 91a. We have not located where in the record Purvis alerted the
trial court to its failure to rule on her motion to compel payment of the fees awarded
in the prior fee order. Nor did Purvis request that the trial court offset, or object to
the trial court’s failure to account for, such award in its final judgment. Purvis did
not preserve her fifth issue. See Tex. R. App. P. 33.1(a).
B. Watson’s appeal against Purvis
1. The trial court did not abuse its discretion in denying leave to amend.
In his first issue, Watson argues that the trial court abused its discretion by
denying his motion for leave to file a sixth amended petition, in which he sought to
add fraud claims against counsel for Purvis and his law firm as new defendants.
Watson maintains there was no showing that his amended petition would operate as
a surprise under Texas Rule of Civil Procedure 63; his petition stated a prima facie
case for fraud; attorney immunity and the Texas Citizens Participation Act did not
vitiate his petition ab initio; and because the trial court’s order did not set forth a
basis for denying Watson leave, it can only be viewed as having been made without
reference to guiding rules or principles.
It is Texas Rule of Civil Procedure 37, however, that provides for the inclusion
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of additional parties in a suit by either plaintiff or defendant, with the limitation that
such additions may not be made “at a time nor in a manner to unreasonably delay
the trial of the case.” Tex. R. Civ. P. 37. Trial courts have great discretion in matters
of party joinder, we review the record in the light most favorable to the trial court’s
decision, and we will not disturb the ruling as long as any authority supports it.
Varme v. Gordon, 881 S.W.2d 877, 882 (Tex. App.—Houston [14th Dist.] 1994,
writ denied). We review the record in the light most favorable to the trial court’s
action. Id. We are not aware of, and Watson does not point to, any authority that
compels us to find an abuse of discretion simply because a trial court does not
expressly state the basis for its ruling in its order. Based on the circumstances, we
conclude that the trial court did not abuse its discretion by refusing to permit the
joinder of counsel for Purvis and his firm as new defendants approximately two
weeks before the summary-judgment hearing and less than two months before trial
was set. See Tex. R. Civ. P. 37; Varme, 881 S.W.2d at 883 (“This discretion includes
the power to make a determination that a party’s joinder will delay a trial whose date
has already been set.”).
We overrule Watson’s first issue against Purvis.
2. Nor did the trial court abuse its discretion in excluding attorney’s-fee
evidence.
Watson next challenges the trial court’s decision to refuse to admit evidence
he proffered in support of his chapter-38 attorney’s fees. Watson points to the trial
court’s statement in its interlocutory summary-judgment order that the court would
hold a later evidentiary hearing on his attorney’s fees. Watson contends that the trial
court can take judicial notice of usual and customary attorney’s fees, which are
presumptively reasonable, see Tex. Civ. Prac. & Rem. Code Ann. §§ 38.003, 38.004,
without requiring expert testimony. Watson also argues that the trial court abused its
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discretion by basing its ruling on a limine order from May 30, 2017.
Although Watson in his summary-judgment motion stated that he would
provide the trial court with evidence of his attorney’s fees by separate motion, he did
not. See Universal MRI & Diagnostics, Inc. v. Med. Lien Mgmt. Inc., 497 S.W.3d
653, 663 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (attorney’s fees may be
awarded on summary judgment only when evidence is conclusive). Watson does not
provide, and we have not located, any authority requiring a trial court to admit
evidence of attorney’s fees simply because it stated it would hold an evidentiary
hearing on attorney’s fees.
At the hearing, Watson did not make an offer of proof regarding his attorney’s
fees. Watson also did not request that the trial court take judicial notice of the usual
and customary fees or the contents of the case file. Even if he had, a trial court is not
required to take judicial notice regarding attorney’s fees. See Tex. Civ. Prac. & Rem.
Code Ann. § 38.004 (court “may” take judicial notice).
Finally, we do not agree that the trial court based its decision on the May 30
limine order. Instead, the trial court asked counsel for Watson whether “subsequent
to that” he made a designation on attorney’s fees or supplemented any previous
designation, and counsel answered he had not. See Tex. R. Civ. P. 193.5, 193.6,
194.2. Under these circumstances, we cannot conclude that the trial court abused its
broad discretion in granting Purvis’s motion to exclude. See City of Brownsville v.
Alvarado, 897 S.W.2d 750, 753 (Tex. 1995); Ainsworth v. CACH, LLC, No. 14-11-
00502-CV, 2012 WL 1205525, at *8 (Tex. App.—Houston [14th Dist.] Apr. 10,
2012, pet. denied) (mem. op.) (reviewing evidentiary ruling under chapter 38 for
abuse of discretion).
We overrule Watson’s second issue against Purvis.
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C. Watson’s appeal against Al-Banna
1. The trial court properly granted no-evidence summary judgment.
In his first two issues against Al-Banna, Watson argues that he adduced
sufficient evidence to support the contested elements of—and avoid no-evidence
summary judgment on—his misappropriation claim against Al-Banna based on
conspiracy liability.
In his no-evidence motion, Al-Banna stated the three elements of a
misappropriation-of-name claim and argued that Watson could not produce evidence
to raise a fact issue on the first and third elements. See Talia Heights, 566 S.W.3d at
329 (three elements of misappropriation claim are: (1) defendant appropriated
plaintiff’s name or likeness for value associated with it, and not in incidental manner
or for newsworthy purpose; (2) plaintiff can be identified from publication; and
(3) there was some advantage or benefit to defendant).
Watson’s arguments and evidence focus on proving the benefits conferred on
Al-Banna from the real estate transactions at issue, i.e., the third element of
misappropriation. But neither in his response nor on appeal does Watson point to
evidence showing that these benefits derived from Al-Banna’s appropriation of the
value associated with Watson’s name instead of from the transactions themselves.
See id. at 330. Al-Banna’s no-evidence summary-judgment motion required Watson
to produce evidence showing that his name was appropriated to take advantage of
his reputation, prestige, or other values. See id. at 331. To the contrary, Watson
argues that “Al-Banna and his co-conspirators relied on the fact that Watson was
anonymous in the real estate investing game.” See id. But “this argument does not
show that [Al-Banna’s] alleged misuse of Watson’s name had ‘anything to do with
Watson’s unique skills or reputation’—it instead suggests that Watson’s name was
interchangeable with that of any other ‘anonymous’ individual.” Id. Considering the
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evidence in the light most favorable to Watson, we conclude that the trial court did
not err in granting no-evidence summary judgment on Watson’s misappropriation
claim against Al-Banna.
Because we conclude that Al-Banna was entitled to summary judgment on
Watson’s misappropriation claim, Al-Banna also was entitled to summary judgment
on Watson’s derivative conspiracy claim. See id. (“If summary judgment is granted
as to the underlying tort, summary judgment also must be granted with respect to the
derivative conspiracy claim.”).
We overrule Watson’s first two issues against Al-Banna.
2. Watson failed to show error based on counsel for Al-Banna’s
deposition behavior.
In his third issue against Al-Banna, Watson argues that counsel for Al-Banna
behaved impermissibly during Al-Banna’s deposition and violated Texas Rule of
Civil Procedure 199.5(d–h). See Tex. R. Civ. P. 199.5 (“Examination, Objection,
and Conduct During Oral Depositions”). Watson points to various places during Al-
Banna’s deposition in which counsel for Al-Banna instructed Al-Banna not to
answer a question. Watson requests that this court “give him the benefit of a negative
inference from Al-Banna’s and [his counsel]’s untoward deposition behavior, and
adjudicate this appeal with the presumption that . . . appropriate answers to
deposition questions would have provided yet more evidence in support of
Al-Banna’s involvement in the conspiracy and scheme to misappropriate Watson’s
name for commercial gain.”
The record does not reflect that Watson requested that counsel for Al-Banna
explain the grounds for any of his instructions not to answer, see id. 199.5(f), or
requested a hearing regarding any instruction, see id. 199.6. Nor does Watson cite,
and we have not located, any authority providing for a negative inference on appeal
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based on a rule-199.5 violation. In any event, we already have concluded that
Watson failed to raise a fact issue that Al-Banna appropriated Watson’s name based
on its value, and none of these questions was calculated to adduce evidence to
support that element.
We overrule Watson’s third issue against Al-Banna.
III. CONCLUSION
Accordingly, we reverse the portions of the trial court’s judgment awarding
principal damages and pre-judgment interest; render judgment that Watson have and
recover from Purvis “Principal Damages owed under the Recorded Settlement
Agreement of $12,500.00” and “Pre-judgment Interest at the rate of 5% for each of
the first two missed payments of $2,500.00, calculated from the date of suit filing
(August 23, 2017) until the day before judgment (February 1, 2018), and for each of
the three remaining missed payments of $2,500.00, respectively calculated from the
date of each missed payment (September 15, October 15, and November 15, 2017)
until February 1, 2018, which is equivalent to $222.64”; and affirm the remainder of
the judgment as challenged on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Justices Wise, Zimmerer, and Spain.
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