Hossain Baghvardani v. Carmen Wilson

• Court: Court of Appeals of Texas
• Decided: April 10, 2015
• Docket: 05-14-00431-CV
• Status: Published

Opinion

AFFIRM; and Opinion Filed April 10, 2015.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00431-CV

HOSSAIN BAGHVARDANI, Appellant V. CARMEN WILSON, Appellee

On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-13-06562

MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Whitehill Opinion by Justice Lang-Miers Appellant Hossain Baghvardani appeals from a summary judgment granted in favor of

appellee Carmen Wilson. We affirm the trial court’s summary judgment.

Baghvardani filed a pro se personal injury suit against Wilson on June 13, 2013, for

injuries he claims to have sustained in a traffic accident that occurred on June 15, 2011. Wilson

was served with process on December 15, 2013, and filed an answer on January 3, 2014. A few

weeks later Wilson moved for summary judgment on the ground that Baghvardani’s claims were

barred by the two-year statute of limitations for negligence claims because Wilson was not

served with process until six months after limitations expired, and Baghvardani failed to exercise

due diligence in obtaining issuance and service of citation. Baghvardani did not file a response

to Wilson’s motion. After a hearing, the trial court granted Wilson’s motion and dismissed

Baghvardani’s claims. On appeal Baghvardani argues that summary judgment was improper because he was

diligent in attempting to serve Wilson, but was unable to serve her sooner because she was out of

the country. To support his argument Baghvardani relies solely on the following statement he

made to the trial court at the summary-judgment hearing, shown in context:

THE COURT: [Wilson’s] motion was filed on January the 31st, 2014. Mr. Baghvardani, did you ever file a response to that motion?

MR. BAGHVARDANI: I come here, I talk to Your Honor, and I had a letter that said 28 of October,[ 1] and after that I tried to find Ms. Wilson, but I couldn’t find her. I sent two more people and they couldn’t find her. And, finally, December 15th, when I find her, she said her mother, she passed away, and she went to Mexico, and she arrived same day when I saw her.

(Emphasis added.)

We notified Baghvardani that his initial appellant’s brief was defective in several

respects, and that failure to file a brief that complied with the rules of appellate procedure could

result in dismissal. Baghvardani filed an amended brief, but the amended brief is also deficient

in several respects, including because Baghvardani does not cite any relevant authority. See

TEX. R. APP. P. 38.1(i) (brief must contain “appropriate citations to authorities”); see also Bolling

v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 896 (Tex. App.—Dallas 2010, no pet.)

(“[E]xisting legal authority applicable to the facts and the questions we are called on to answer

must be accurately cited.”). “If we are not provided with existing legal authority that can be

applied to the facts of the case, the brief fails.” Bolling, 315 S.W.3d at 896.

Moreover, to support his argument, Baghvardani relies upon the statement quoted above,

which he made to the trial court during the hearing on Wilson’s motion for summary judgment.

That statement, however, is not competent summary-judgment evidence, and we are precluded

from considering it on appeal. See TEX. R. CIV. P. 166(a)(c) (oral testimony is not permitted at

1 The record contains a notice of intent to dismiss stating that the case was set for dismissal hearing by submission on Monday, October 28, 2013.

–2– summary-judgment hearings, and “[i]ssues not expressly presented to the trial court by written

motion, answer or other response shall not be considered on appeal as grounds for reversal”).

Because appellant’s brief does not comply with the rules of appellate procedure, and

because we are precluded from considering the only statement he relies upon, we affirm the trial

court’s summary judgment. See Crouch v. Continental Cas. Co., No. 05-06-00605-CV, 2007

WL 2028761, at *1 (Tex. App.—Dallas July 16, 2007, pet. denied) (mem. op.) (affirming

judgment after concluding appellant waived all issues for inadequate briefing).

/Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE

140431F.P05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

HOSSAIN BAGHVARDANI, Appellant On Appeal from the 160th Judicial District Court, Dallas County, Texas No. 05-14-00431-CV V. Trial Court Cause No. DC-13-06562. Opinion delivered by Justice Lang-Miers. CARMEN WILSON, Appellee Justices Francis and Whitehill participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee Carmen Wilson recover her costs of this appeal from appellant Hossain Baghvardani.

Judgment entered this 10th day of April, 2015.

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