Jim-Daniels Nnah v. 125 Interests, Inc., 6219 Interests, Ltd. N/K/A 5600 Interests, Ltd., and David Neal Greenberg
Opinion
ACCEPTED 14-15-00443-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 9/29/2015 5:11:54 PM CHRISTOPHER PRINE CLERK
NO. 14-15-00443-CV
IN THE FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS FOURTEENTH DISTRICT COURT OF APPEALS OF TEXAS 9/29/2015 5:11:54 PM CHRISTOPHER A. PRINE Clerk AT HOUSTON, TEXAS
JIM-DANIELS NNAH, Appellant v.
125 INTERESTS, INC., 6219 INTERESTS, LTD n/k/a 5600 INTERESTS, LTD. and DAVID NEAL GREENBERG, Appellees
On appeal from the 270th Judicial District Court of Harris County, Texas Trial Court Cause No. 2012-23146
JIM-DANIELS NNAH’S APPELLANT’S BRIEF
George F. May State Bar No. 24037050 Lori Twomey State Bar No. 24037621 TWOMEY | MAY, PLLC 2 Riverway, 15th Floor Houston, Texas 77056 (713) 659-0000 Telephone (832) 201-8485 Facsimile
Attorneys for Appellant Jim-Daniels Nnah
ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL
APPELLANT Jim-Daniels Nnah
APPELLANT’S COUNSEL
(trial and appeal) George F. May george@twomeymay.com State Bar No. 24037050 TWOMEY | MAY, PLLC 2 Riverway, 15th Floor Houston, Texas 77056 (713) 659-0000 Telephone (832) 201-8485 Facsimile
(appeal only) Lori Twomey State Bar No. 24037621 lori@twomeymay.com TWOMEY | MAY, PLLC 2 Riverway, 15th Floor Houston, Texas 77056 (713) 659-0000 Telephone (832) 201-8485 Facsimile
APPELLEES 6219 Interests, Ltd. n/k/a 5600 Interests, Ltd. 125 Interests, Inc., and David Neal Greenberg
APPELLEES’ COUNSEL Andrew P. McCormick ammccormick@mlm-lawfirm.com State Bar No. 13457100 Laurie A. Munoz lmunoz@mlm-lawfirm.com State Bar No. 24071782 McCormick, Lanza & McNeel, LLP 4950 Bissonnet Street Bellaire, Texas 77401 (713) 523-0400 (281) 752-6329 (fax)
ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
INDEX OF AUTHORITIES.................................................................................... vi
STATEMENT OF THE CASE ............................................................................... vii
ISSUES PRESENTED............................................................................................. ix
I. Under Texas law, a trial court commits error if it grants a no evidence motion for summary judgment on a claim not expressly presented in the motion. The only breach of contract issue raised by the Greenberg parties was that there was no evidence of the formation of a contract between 5600 Interests and Nnah relating to property taxes. But Nnah’s pleadings never raised such a claim and instead asserted that Greenberg and 125 Interests breached their agreement to assign the Note to Nnah. Did the trial court error in granting summary judgment on Nnah’s breach of contract claim when that claim was not challenged in the no evidence motion for summary judgment? ................................................... ix
II. Under Texas law, a trial court commits error if the non- movant on a no evidence summary judgment motion presents more than a scintilla of evidence raising a genuine issue of material fact on each challenged element and claim. Nnah presented evidence that raised genuine issues of material fact regarding whether Greenberg, 125 Interests, and 5600 Interests each acted to deprive Nnah, who was the holder of all rights under the Note by assignment, of the benefit of property taxes that had previously been paid by 5600 Interests on behalf of 125 Interests pursuant to the Note when held by 125 Interests. Did the trial court error in granting summary judgment on Nnah’s tortious interference, Texas Theft Liability Act, and declaratory judgment claims? ................... ix
iii III. Under the Texas Theft Liability Act, an attorney seeking the award of attorney’s fees must present evidence that the fees incurred were reasonable and necessary. The affidavit of Andrew McCormick, attorney for the Greenberg parties, generally states that he charged the Greenberg parties $325 per hour and, without providing any evidence of the basis of his conclusion, concluded that $15,000.00 was attributable to the theft claim. Did the trial court error in awarding attorney’s fees when there was no evidence as to how the fees were calculated and whether those hours were reasonable and necessary?......................................................................... ix
STATEMENT OF FACTS ........................................................................................1
SUMMARY OF THE ARGUMENT ........................................................................7
ARGUMENT ...........................................................................................................11
I. The trial court erred in granting summary judgment against Nnah on his breach of contract claim because the Greenberg parties failed to challenge this claim in its no evidence motion for summary judgment .................................................................. 11
II. The trial court erred in granting summary judgment against Nnah on his tortious interference, Texas Theft Liability Act, and declaratory judgment claims because not all of those claims were challenged by the Greenberg parties and, of the claims that were challenged, there are genuine issues of material fact on each element of each challenged claim. .......................... 12
A. The trial court improperly granted summary judgment on Nnah’s tortious interference claims against Greenberg and 5600 Interests because the no evidence motion for summary judgment failed to address all of the pled interference claims and, in the alternative, the evidence raises a genuine issue of material fact on these claims ........................................................................................ 13
iv B. The trial court improperly granted summary judgment on Nnah’s Texas Theft Liability Act claim because Nnah raised a genuine issue of material fact regarding his theft claim against 5600 Interests and the Greenberg parties no evidence motion for summary judgment failed to challenge Nnah’s Theft claims against Greenberg and 125 Interests ................................................ 17
C. The trial court improperly granted summary judgment on Nnah’s declaratory judgment claim because it was proper for Nnah to ask the trial court to declare the meaning of a provision within the Assignment .................................. 20
III. The trial court erred in awarding Appellees Greenberg, 125 Interests, and 5600 Interests attorney’s fees because Mr. McCormick’s affidavit was insufficient to prove, as a matter of law, that the fees were reasonable and necessary ................................. 22
CONCLUSION AND PRAYER .............................................................................24
CERTIFICATE OF COMPLIANCE .......................................................................27
CERTIFICATE OF SERVICE ................................................................................28
APPENDIX
TAB 1 – Trial court’s original order granting summary judgment
TAB 2 – Trial court’s amended order granting summary judgment
TAB 3 – Trial court’s order granting non-suit (making summary judgment final)
TAB 4 – Assignment of promissory note and deed of trust from 125 Interests to Jim-Daniels Nnah
TAB 5 – David Neal Greenberg admission that property taxes were paid under the note and pursuant to the deed of trust
v INDEX OF AUTHORITIES
Cases:
ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426 (Tex. 1997) .......................... 14
City of Laredo v. Montano, 414 S.W.3d 731 (Tex.
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ACCEPTED 14-15-00443-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 9/29/2015 5:11:54 PM CHRISTOPHER PRINE CLERK
NO. 14-15-00443-CV
IN THE FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS FOURTEENTH DISTRICT COURT OF APPEALS OF TEXAS 9/29/2015 5:11:54 PM CHRISTOPHER A. PRINE Clerk AT HOUSTON, TEXAS
JIM-DANIELS NNAH, Appellant v.
125 INTERESTS, INC., 6219 INTERESTS, LTD n/k/a 5600 INTERESTS, LTD. and DAVID NEAL GREENBERG, Appellees
On appeal from the 270th Judicial District Court of Harris County, Texas Trial Court Cause No. 2012-23146
JIM-DANIELS NNAH’S APPELLANT’S BRIEF
George F. May State Bar No. 24037050 Lori Twomey State Bar No. 24037621 TWOMEY | MAY, PLLC 2 Riverway, 15th Floor Houston, Texas 77056 (713) 659-0000 Telephone (832) 201-8485 Facsimile
Attorneys for Appellant Jim-Daniels Nnah
ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL
APPELLANT Jim-Daniels Nnah
APPELLANT’S COUNSEL
(trial and appeal) George F. May george@twomeymay.com State Bar No. 24037050 TWOMEY | MAY, PLLC 2 Riverway, 15th Floor Houston, Texas 77056 (713) 659-0000 Telephone (832) 201-8485 Facsimile
(appeal only) Lori Twomey State Bar No. 24037621 lori@twomeymay.com TWOMEY | MAY, PLLC 2 Riverway, 15th Floor Houston, Texas 77056 (713) 659-0000 Telephone (832) 201-8485 Facsimile
APPELLEES 6219 Interests, Ltd. n/k/a 5600 Interests, Ltd. 125 Interests, Inc., and David Neal Greenberg
APPELLEES’ COUNSEL Andrew P. McCormick ammccormick@mlm-lawfirm.com State Bar No. 13457100 Laurie A. Munoz lmunoz@mlm-lawfirm.com State Bar No. 24071782 McCormick, Lanza & McNeel, LLP 4950 Bissonnet Street Bellaire, Texas 77401 (713) 523-0400 (281) 752-6329 (fax)
ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
INDEX OF AUTHORITIES.................................................................................... vi
STATEMENT OF THE CASE ............................................................................... vii
ISSUES PRESENTED............................................................................................. ix
I. Under Texas law, a trial court commits error if it grants a no evidence motion for summary judgment on a claim not expressly presented in the motion. The only breach of contract issue raised by the Greenberg parties was that there was no evidence of the formation of a contract between 5600 Interests and Nnah relating to property taxes. But Nnah’s pleadings never raised such a claim and instead asserted that Greenberg and 125 Interests breached their agreement to assign the Note to Nnah. Did the trial court error in granting summary judgment on Nnah’s breach of contract claim when that claim was not challenged in the no evidence motion for summary judgment? ................................................... ix
II. Under Texas law, a trial court commits error if the non- movant on a no evidence summary judgment motion presents more than a scintilla of evidence raising a genuine issue of material fact on each challenged element and claim. Nnah presented evidence that raised genuine issues of material fact regarding whether Greenberg, 125 Interests, and 5600 Interests each acted to deprive Nnah, who was the holder of all rights under the Note by assignment, of the benefit of property taxes that had previously been paid by 5600 Interests on behalf of 125 Interests pursuant to the Note when held by 125 Interests. Did the trial court error in granting summary judgment on Nnah’s tortious interference, Texas Theft Liability Act, and declaratory judgment claims? ................... ix
iii III. Under the Texas Theft Liability Act, an attorney seeking the award of attorney’s fees must present evidence that the fees incurred were reasonable and necessary. The affidavit of Andrew McCormick, attorney for the Greenberg parties, generally states that he charged the Greenberg parties $325 per hour and, without providing any evidence of the basis of his conclusion, concluded that $15,000.00 was attributable to the theft claim. Did the trial court error in awarding attorney’s fees when there was no evidence as to how the fees were calculated and whether those hours were reasonable and necessary?......................................................................... ix
STATEMENT OF FACTS ........................................................................................1
SUMMARY OF THE ARGUMENT ........................................................................7
ARGUMENT ...........................................................................................................11
I. The trial court erred in granting summary judgment against Nnah on his breach of contract claim because the Greenberg parties failed to challenge this claim in its no evidence motion for summary judgment .................................................................. 11
II. The trial court erred in granting summary judgment against Nnah on his tortious interference, Texas Theft Liability Act, and declaratory judgment claims because not all of those claims were challenged by the Greenberg parties and, of the claims that were challenged, there are genuine issues of material fact on each element of each challenged claim. .......................... 12
A. The trial court improperly granted summary judgment on Nnah’s tortious interference claims against Greenberg and 5600 Interests because the no evidence motion for summary judgment failed to address all of the pled interference claims and, in the alternative, the evidence raises a genuine issue of material fact on these claims ........................................................................................ 13
iv B. The trial court improperly granted summary judgment on Nnah’s Texas Theft Liability Act claim because Nnah raised a genuine issue of material fact regarding his theft claim against 5600 Interests and the Greenberg parties no evidence motion for summary judgment failed to challenge Nnah’s Theft claims against Greenberg and 125 Interests ................................................ 17
C. The trial court improperly granted summary judgment on Nnah’s declaratory judgment claim because it was proper for Nnah to ask the trial court to declare the meaning of a provision within the Assignment .................................. 20
III. The trial court erred in awarding Appellees Greenberg, 125 Interests, and 5600 Interests attorney’s fees because Mr. McCormick’s affidavit was insufficient to prove, as a matter of law, that the fees were reasonable and necessary ................................. 22
CONCLUSION AND PRAYER .............................................................................24
CERTIFICATE OF COMPLIANCE .......................................................................27
CERTIFICATE OF SERVICE ................................................................................28
APPENDIX
TAB 1 – Trial court’s original order granting summary judgment
TAB 2 – Trial court’s amended order granting summary judgment
TAB 3 – Trial court’s order granting non-suit (making summary judgment final)
TAB 4 – Assignment of promissory note and deed of trust from 125 Interests to Jim-Daniels Nnah
TAB 5 – David Neal Greenberg admission that property taxes were paid under the note and pursuant to the deed of trust
v INDEX OF AUTHORITIES
Cases:
ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426 (Tex. 1997) .......................... 14
City of Laredo v. Montano, 414 S.W.3d 731 (Tex. 2013) ...................................... 23
Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) ..................................... 12
Johnson v. Brewer Pritchard, P.C., 73 S.W.3d 193 (Tex. 2002) ........................... 11
Smith v. Smith, 757 S.W.2d 422 (Tex. App.—Dallas 1988, writ denied) .............. 23
Timpte Indus., Inc. v. Gish, 286 S.W.3d 306 (Tex. 2009) ...................................... 11
Statutes and Rules
Tex. Civ. Prac. & Rem. Code § 37.004(a) ............................................................... 21
Tex. Civ. Prac. & Rem. Code § 38.004 ................................................................... 23
Tex. Civ. Prac. & Rem. Code §§ 134.002-134.005 ................................................. 18
Tex. Civ. Prac. & Rem. Code. § 134.005(b) ........................................................... 23
Tex. R. Civ. Pro. 166a ............................................................................................. 22
Tex. R. Civ. P. 166a(c) ........................................................................................... 24
Tex. R. Civ. Pro. 166a(i) .......................................................................11, 12, 13, 17
vi STATEMENT OF THE CASE
The case in the trial court below involves many different parties and claims
all associated with a complex commercial real estate transaction. This appeal, in
contrast, is relatively straightforward and relates solely to the Appellant Jim-
Daniels Nnah’s purchase, from Appellee 125 Interests, of all rights and interests in
a promissory note, secured by a deed of trust and vendor’s lien upon the real estate.
Specifically, on appeal this case concerns whether the Appellees inappropriately
obtained a “refund” of property taxes, that had been paid under the Note and
pursuant to the Deed of Trust, after all rights and interests in the Note and Deed of
Trust had been assigned to Nnah.
As relevant to this appeal, Appellees David Neal Greenberg, 125 Interests,
Inc., and 5600 Interests, Ltd. filed a no evidence summary judgment motion
covering some, but not all, of Appellant Nnah’s breach of contract, tortious
interference, Texas Theft Liability Act, and declaratory judgment claims and a
traditional motion for summary judgment on their attorney’s fees claims. (I C.R. at
141-75). Appellant Nnah timely filed a response to the motion attaching summary
judgment evidence. (II C.R. at 176-368). The Honorable Brent Gamble, presiding
judge of the 270th District Court of Harris County, Texas, granted Appellees’ no
evidence motion, dismissed all of Appellant’s claims, whether challenged or not,
and awarded Appellees attorney’s fees under the Texas Theft Liability Act. (II
vii C.R. at 369-70). On January 30, 2015, the Order was amended to correct an error
regarding the attorney’s fees. (II C.R. at 388-89). On February 2, 2015, Nnah
filed his notice of non-suit on his only remaining claims, against Harris County,
which was granted on February 17, 2015. (II C.R. at 391-93). The granting of this
non-suit as to Harris County made final the trial court’s previous summary
judgment order improperly dismissing all Nnah’s remaining claims against the
Greenberg parties. On March 3, 2015, Nnah filed a motion for new trial and, on
May 1, 2015, Nnah timely filed a notice of appeal. (II C.R. at 404-06).
viii ISSUES PRESENTED
I. Under Texas law, a trial court commits error if it grants a no evidence motion for summary judgment on a claim not expressly presented in the motion. The only breach of contract issue raised by the Greenberg parties was that there was no evidence of the formation of a contract between 5600 Interests and Nnah relating to property taxes. But Nnah’s pleadings never raised such a claim and instead asserted that Greenberg and 125 Interests breached their agreement to assign the Note to Nnah. Did the trial court error in granting summary judgment on Nnah’s breach of contract claim when that claim was not challenged in the no evidence motion for summary judgment?
II. Under Texas law, a trial court commits error if the non-movant on a no evidence summary judgment motion presents more than a scintilla of evidence raising a genuine issue of material fact on each challenged element and claim. Nnah presented evidence that raised genuine issues of material fact regarding whether Greenberg, 125 Interests, and 5600 Interests each acted to deprive Nnah, who was the holder of all rights under the Note by assignment, of the benefit of property taxes that had previously been paid by 5600 Interests on behalf of 125 Interests pursuant to the Note when held by 125 Interests. Did the trial court error in granting summary judgment on Nnah’s tortious interference, Texas Theft Liability Act, and declaratory judgment claims?
III. Under the Texas Theft Liability Act, an attorney seeking the award of attorney’s fees must present evidence that the fees incurred were reasonable and necessary. The affidavit of Andrew McCormick, attorney for the Greenberg parties, generally states that he charged the Greenberg parties $325 per hour and, without providing any evidence of the basis of his conclusion, concluded that $15,000.00 was attributable to the theft claim. Did the trial court error in awarding attorney’s fees when there was no evidence as to how the fees were calculated and whether those hours were reasonable and necessary?
ix STATEMENT OF FACTS
Appellant, Jim Daniels Nnah (“Nnah”), is one of two managers of Coral
Pearls, LLC (“Coral Pearls”). Appellee David Neil Greenberg (“Greenberg”) is a
licensed real estate broker who is the sole owner, officer, and director of Appellee
125 Interests, Inc. (“125 Interests”). (II C.R. at 293-96). Greenberg is also the sole
member and manager of DG Realty, LLC, which is the sole general partner of
Appellee 5600 Interests, Ltd. f/k/a 6219 Interests, Ltd. (“5600 Interests”). (II C.R.
at 287-92). Greenberg is also the sole limited partner of 5600 Interests. (II C.R. at
283-87). Thus, Greenberg owns and controls 100 percent of both Appellee 5600
Interests and Appellee 125 Interests. (II C.R. at 283-96).
Purchase of Richmond Property, Acceleration of Note, and Bankruptcy
In June of 2011, Coral Pearls purchased property located at 6219 Richmond
Avenue in Houston, Texas (the “Richmond Property”) from 5600 Interests. (II
C.R. at 241-60, 78). Coral Pearls financed $940,000.00 of the purchase price
through the lender DG Interests, Inc. (“DG Interests”), another entity of which
Greenberg is the sole director, president, and registered agent. (II C.R. at 261-65,
297-309). Under the terms of the promissory note executed on June 1, 2011
(“Note”), which was secured by a deed of trust and vendor’s lien upon the
Richmond Property (“Deed of Trust”), Coral Pearls was to pay $340,000.00 within
one month of closing and $55,000.00 each quarter until the Note was paid. (II
1 C.R. at 261-65, 221-32). Coral Pearls paid the initial $340,000.00 payment and the
first quarterly payment of $55,000.00 in September of 2011. Through a
Modification Agreement dated November 9, 2011, the due date of the second
quarterly installment was delayed until January of 2012. (II C.R. at 266-270). On
the same day, Nnah was added as an individual guarantor of the Note. (II C.R. at
194-200, 278).
Coral Pearls completed the second quarterly payment on the Note on
February 17, 2012 and despite Greenberg’s acceptance of the payment, DG
Interests accelerated the Note, demanded that the balance of the Note be paid
immediately, and threatened to foreclose on Coral Pearls and take the Richmond
Property back. (II C.R. at 368). Although Coral Pearls did not agree that the loan
was in default, in March of 2012 Coral Pearls was forced to seek bankruptcy
protection to stop the threatened foreclosure. Once threatened with repossession of
the Richmond Property and entering bankruptcy, Coral Pearls made no further
payments on the Note and it did not pay the 2011 or 2012 property taxes totaling
$71,680.14. (II C.R. at 179, 279).
Lawsuit and First No Evidence Motion for Summary judgment
On April 20, 2012, while the Coral Pearls bankruptcy was pending, DG
Interests filed the present lawsuit against Nnah individually to enforce Nnah’s
obligation as guarantor on the Note. (I C.R. at 5-8). Later in 2012, DG Interests
2 assigned all of its rights in the Note, the Deed of Trust, and its Vendors Lien on the
Richmond Property to 125 Interests. (II C.R. at 273-74, 278). In response to the
lawsuit, Nnah filed counterclaims against DG Interests, joined Coral Pearls as a
third party plaintiff, and filed a third party petition against Greenberg individually
and against several of Greenberg’s parties, including Appellee 5600 Interests, DG
Realty, LLC, Greenberg & Company, Inc., and Greenberg & Associates, Inc. (I
C.R. at 33-49). Nnah’s original claims against these Greenberg parties were for
Negligence, Misrepresentation, Fraud, Conspiracy, Fraud in the Real Estate
Transaction, violations of the Real Estate Licensing Act, Alter-Ego, Successor
Liability and Respondeat Superior, and a claim for Rescission. (I C.R. at 33-49).
All of these claims were related to actions associated with the original real estate
transaction for the Richmond Property. In 2013, the Greenberg parties jointly filed
their first no evidence motion for summary judgment on all of these claims, which
the trial court granted on February 4, 2014. (I C.R. at 69-79, 113). The propriety
of this first summary judgment is not at issue on appeal.
Agreement for Nnah to Purchase Note from 125 Interests
125 Interests had the right, pursuant to the Deed of Trust, to pay the property
taxes owed by Coral Pearls in order to protect its lien priority on the Richmond
Property. (II C.R. at 223-24). In accordance with this right, in January of 2013,
Greenberg directed that the 2011 and 2012 property taxes on the Richmond
3 Property be paid from 5600 Interests’ checking account, but on behalf of 125
Interests, who was the holder of the Note. (I C.R. at 201, 212-13).
In February of 2013, after these property taxes had been paid, Greenberg and
Nnah negotiated an agreement to settle the dispute between the parties whereby
Nnah would purchase the Coral Pearls’ Note from 125 Interests. (II C.R. at 205-
07, 278). Pursuant to the agreement, Nnah paid $683,920.10 and, in exchange, 125
Interests was to assign to Nnah all of its rights and interests in the Note, Deed of
Trust, and Vendors Lien associated with the Richmond Property, without
reservation. (II C.R. at 205-07, 278). While Nnah believed that Coral Pearls owed
less than the demanded amount, he was willing to pay the $683,920.10 demanded
by Greenberg because Nnah had determined through an examination of the tax
records that the property taxes for 2011 and 2012 had already been paid. (II C.R.
at 278-79).
On February 21, 2013, Nnah paid the $683,920.10 to 125 Interests. (II C.R.
at 278). On the same day, Greenberg executed the negotiated Assignment, but he
refused to deliver the Assignment to Nnah claiming that he needed to first verify
receipt of the funds in his bank account. (II C.R. at 204-04, 78-79). On February
22, 2013, Greenberg acknowledged that the funds were received by wire transfer.
(II C.R. at 201). Although the terms of the Assignment had been agreed to, and
Nnah had fully performed his obligations under the Assignment, Greenberg
4 refused to deliver the Assignment of the Note and Deed of Trust until Nnah agreed
to renegotiate the deal. (II C.R. at 278-79, 201).
In an email sent on February 23, 2013, Greenberg stated that “We initially
calculated the sum of $683,920.10 due under the note …. We double checked our
calculations … and realized that we failed to include ad valorem property taxes for
years 2011 and 2012. These taxes totaled $71,780.24 and were advanced under
the note and pursuant to the deed of trust. Please wire transfer $71,780.20 to
our account ….” (II C.R. at 201). Greenberg attached to this e-mail an accounting
of what Coral Pearl allegedly owed under the Note, which was the first time Nnah
had seen an accounting. (II C.R. at 202). Nnah refused to modify the agreement
and, on February 26, 2013, his attorney sent a written demand that Greenberg
cause 125 Interests to perform as agreed. (II C.R. at 204-05, 78-79). Greenberg
agreed and, on March 1, 2013, he delivered the previously executed Assignment to
Nnah. (II C.R. at 279).
It was only after Nnah refused to renegotiate the February 21, 2013
Assignment, that Greenberg, without informing Nnah, changed his position and
first claimed that 5600 Interests paid the property taxes in error. (II C.R. at 279).
On March 1, 2013, on the same day Greenberg delivered the Assignment to Nnah
and without informing Nnah of his intent, Greenberg submitted an application to
the Harris County Tax Office on behalf of 5600 Interests for a “refund” of property
5 taxes. (II C.R. at 209-13). Although Greenberg had previously stated that these
taxes were “advanced under the note and pursuant to the deed of trust,” Greenberg
now claimed to the Harris County Tax Office that these payments were made in
“error.” (II C.R. at 201, 09-13). On April 9, 2013, the Harris County Tax office
refunded the $71,680.14 to 5600 Interests. As a result, Nnah was forced to pay to
the Harris County Tax Office $77,669.22 in property taxes, interests, and penalties.
(II C.R. at 280, 235, 238-39).
Appellee’s Second No Evidence Motion for Summary Judgment
Prior to the trial court’s determination on the Greenberg parties’ first no
evidence motion for summary judgment, Nnah and Coral Pearls amended its
counter claim and third party petition. (I C.R. at 121-140). As relevant to this
appeal, Nnah added 125 Interests as a third party defendant and Nnah added new
claims of (1) Breach of Contract against Greenberg and 125 Interests, (2) Tortious
Interference with Contract against 5600 interests and Greenberg, (3) violation of
the Texas Theft Liability act against Greenberg, 125 Interests, and 5600 Interests,
and (4) requested a Declaratory Judgment that 125 Interests’ assignment of all of
its rights in the Note, Deed of Trust, and Vendor’s Lien actually assigned all rights
including the benefit of the property taxes paid by the previous noteholder pursuant
to the Note and Deed of Trust that had subsequently been assigned to Nnah. (I
6 C.R. at 121-140). All of these “new” claims related to the Appellees actions in
obtaining the $71,680.14 property tax refund.
The Greenberg parties, which included all three Appellees to this appeal,
filed a second no evidence motion for summary judgment on some, but not all, of
Nnah’s newly added claims. (I C.R. at 141-149). The Greenberg parties also
sought a traditional motion for summary judgment on their claim for attorney’s
fees under the Texas Theft Liability Act. (I C.R. at 141-49). The trial court,
improperly granted summary judgment and dismissed all of Nnah’s claims, even in
light of the genuine issues of material fact created by the summary judgment
evidence. (See II C.R. at 388-89). The trial court also improperly awarded
Greenberg, 125 Interests, and 5600 Interests attorney’s fees despite the
insufficiency of Mr. McCormick’s affidavit regarding attorney’s fees. (See II C.R.
at 388-89).
SUMMARY OF THE ARGUMENT
Nnah received an assignment of all right, title and interest in and to the Note
and Deed of Trust without any rights being reserved or withheld. At the time of
the assignment, as Nnah knew, the rights under the Note and Deed of Trust
included the right to be reimbursed from the debtor the $71,680.14 in property
taxes that the noteholder had, in Greenberg’s words, “advanced under the note and
pursuant to the deed of trust.” Before delivering the assignment, Greenberg
7 admitted in an email to Nnah’s counsel that $71,680.10 in property taxes had been
voluntarily paid by the lender as it had a right to under the Note and Deed of Trust.
After the assignment of all rights to Nnah, Appellee Greenberg, the sole owner and
director of 125 Interests and 5600 Interests, obtained a “refund” of the property
taxes from the Harris County Tax Office by stating that the taxes were not
voluntarily advanced by the lender (as Greenberg had admitted to Nnah) but were
“paid in error” by the former property owner 5600 Interests. As a result, Nnah was
forced to pay to the Harris County Tax Office $77,669.22 in property taxes,
interests, and penalties.
The Greenberg parties presented a no-evidence motion for summary
judgment on some, but not all, of Nnah’s causes of action and claims. The trial
court erred by granting the no evidence motion for summary judgment claims not
expressly presented in the Greenberg parties’ no evidence motion. The only
breach of contract issue raised by the Greenberg parties was that there was no
evidence of the formation of a contract between 5600 Interests and Nnah relating
to property taxes. But Nnah’s pleadings never raised such a claim and instead
asserted that Greenberg and 125 Interests breached their agreement to assign the
Note to Nnah. The trial court’s summary judgment should be reversed because
there was no summary motion regarding Nnah’s breach of contract claims against
8 Greenberg or 125 Interests regarding the assignment of the Note and Deed of
Trust.
Under Texas law, a trial court commits error if the non-movant on a no
evidence summary judgment motion presents more than a scintilla of evidence
raising a genuine issue of material fact on each challenged element and claim.
Nnah presented evidence that raised genuine issues of material fact regarding
whether Greenberg, 125 Interests, and 5600 Interests each acted to deprive Nnah,
who was the holder of all rights under the Note by assignment, of the benefit of
property taxes that had previously been paid by 5600 Interests on behalf of 125
Interests pursuant to the Note when held by 125 Interests. Nnah presented
evidence that he had agreed to pay, and did pay, the sum demanded by Greenberg
only after Nnah confirmed with the Harris County Tax Office that the lender had
paid property taxes for 2011 and 2012. Nnah presented evidence that Greenberg
admitted that the noteholder had advanced the taxes under the Note and pursuant to
the Deed of Trust. Nnah presented evidence that Greenberg had changed his
story—from voluntarily advanced under the Note to “paid in error”—in order to
improperly obtain a “refund” from the Harris County Tax Office. Nnah presented
evidence that this was done after the assignment of all rights, knowingly on the
part of the Greenberg entities while concealing their actions from Nnah. This
evidence, at the very least, raised issue of material fact requiring a trial on the
9 merits. The trial court therefore errored in granting summary judgment on Nnah’s
tortious interference, Texas Theft Liability Act, and declaratory judgment claims.
Because summary judgment on Nnah’s theft claims were improper, no
attorney’s fees should have been awarded to the Greenberg parties. Further, under
the Texas Theft Liability Act, an attorney seeking the award of attorney’s fees
must present evidence that the fees incurred were reasonable and necessary. The
only evidence presented by the Greenberg parties was the affidavit of their attorney
Andrew McCormick. But McCormick’s affidavit fails to meet the standard of
proof for the amount of attorney’s fees that were incurred and that they were
reasonable and necessary. McCormick merely stated, generally and without
specificity and without time records, that he charged the Greenberg parties $325
per hour and, in an woefully inadequate attempt to segregate, concluded that
$15,000.00 was attributable to the theft claim without providing any evidence of
the basis of this conclusion. Nnah objected to McCormick’s affidavit. Even if
summary judgment had been proper on Nnah’s theft claims, the trial court still
erred in awarding attorney’s fees because there was no evidence as to how the fees
were calculated and whether the hours and fees alleged were reasonable and
necessary.
10 ARGUMENT
I. The trial court erred in granting summary judgment against Nnah on his breach of contract claim because the Greenberg parties failed to challenge this claim in its no evidence motion for summary judgment.
Under the Texas Rules of Civil Procedure, Appellees Greenberg, 125
Interests, and 5600 Interests had an obligation to specifically challenge each
element of each cause of action on which it claimed there was no evidence and any
unchallenged element or claim cannot rightfully become the basis of a grant of
summary judgment. Tex. R. Civ. Pro. 166a(i). It is well settled law that a trial
court cannot grant a summary judgment motion, whether traditional or no
evidence, on grounds not expressly presented in the motion. Timpte Indus., Inc. v.
Gish, 286 S.W.3d 306, 310 (Tex. 2009) (citing Johnson v. Brewer Pritchard, P.C.,
73 S.W.3d 193, 204 (Tex. 2002)).
In Nnah’s second amended third party petition, Nnah specifically asserted “a
cause of action against David Neal Greenberg and 125 Interests, Inc. for breach of
contract.” (I C.R. at 131). In their no evidence summary judgment motion,
however, the Greenberg parties only asserted that Nnah had no evidence that a
contract had been formed between Nnah and 5600 Interests regarding the property
taxes. (I C.R. at 144-45). The no evidence summary judgment motion fails to
mention Nnah’s breach of contract claim against Greenberg and 125 Interests,
which is a completely separate claim from whether a contract existed between
11 Nnah and 5600 Interests. (I C.R. at 144-45). Although Nnah’s breach of contract
claim against Greenberg and 125 Interests was not challenged in their no evidence
summary judgment motion, the trial court nonetheless dismissed the claim. (II
C.R. at 388-89). The trial court, therefore, committed reversible error in
dismissing Nnah’s breach of contract claim against Greenberg and 125 Interests
and this Court should remand Nnah’s breach of contract claim to the trial court for
a trial on the merits.
II. The trial court erred in granting summary judgment against Nnah on his tortious interference, Texas Theft Liability Act, and declaratory judgment claims because not all of those claims were challenged by the Greenberg parties and, of the claims that were challenged, there are genuine issues of material fact on each element of each challenged claim.
In responding to the no evidence summary judgment motion, the non-
movant “is not required to marshal its proof”; instead, as the non-movant, Nnah
must merely “point out evidence that raises a fact issue on the challenged
elements.” Tex. R. Civ. P. 166a(i); Brewer Pritchard, P.C., 73 S.W.3d at 207. A
genuine issue of material fact is raised if more than a scintilla of evidence is
produced establishing each of the challenged elements and claims. Ford Motor
Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). Circumstantial evidence may
be used to establish a genuine issue of material fact as long as the evidence is more
than mere suspicion. Id. at 601. And when reviewing the grant of a no evidence
summary judgment motion, this Court must also view the evidence in the light
12 most favorable to Nnah. See id. The trial court erred in granting the Greenberg
parties’ no evidence summary judgment motion because Nnah met his burden of
producing more than a scintilla of evidence raising a genuine issue of material fact
on each element and claim challenged in the motion.
A. The trial court improperly granted summary judgment on Nnah’s tortious interference claims against Greenberg and 5600 Interests because the no evidence motion for summary judgment failed to address all of the pled interference claims and, in the alternative, the evidence raises a genuine issue of material fact on these claims.
As detailed in Section I of this brief, summary judgment is improper if it is
granted on an element or claim not challenged in the no evidence motion for
summary judgment. Tex. R. Civ. P. 166a(i). In the Greenberg parties’ no
evidence summary judgment motion, the Greenberg parties challenge that there
was no evidence of a contract between 5600 Interests and Nnah and, because there
was no contract, there could be no interference to cause Nnah damages. (I C.R. at
145). Nowhere in Nnah’s second amended third party petition does Nnah ever
claim that there was a contract between Nnah and 5600 Interests that could be
subject to interference. (See I C.R. at 121-140). However, Nnah’s petition does,
by incorporation of facts, give notice of tortious interference claims against
Greenberg and 5600 Interests for (1) interfering with Nnah’s Assignment
agreement with 125 Interests and, (2) interfering with Nnah’s contract, as assignee
of the Note and Deed of Trust, with Coral Pearls. (I C.R. at 123-132). The trial
13 court, therefore, committed reversible error in dismissing Nnah’s Tortious
Interference claims against Greenberg and 5600 Interests, (II C.R. at 388), and this
Court should remand those claims to the trial court.
In the alternative, even if the Greenberg parties no evidence motion for
summary judgment is stretched to include all of Nnah’s tortious interference
claims, Nnah submitted summary judgment evidence raising a genuine issue of
material fact on each element of his tortious interference claims. The elements of a
tortious interference with an existing contract claim are: (1) the plaintiff had a valid
contract, (2) the defendant willfully and intentionally interfered with the contract,
(3) the interference proximately caused the plaintiff’s injury, and (4) the plaintiff
incurred actual damage or loss. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d
426, 430 (Tex. 1997).
The undisputed evidence shows that Nnah had a contract, known as the
Assignment, with 125 Interests. (II C. R. at 205-06). Under the terms of the
Assignment, 125 Interests assigned to Nnah all of its rights and interests in the
Coral Pearls Note, Deed of Trust, and Vendors Lien. (II C.R. at 205). One of the
specific rights at issue in this case is found in paragraphs 3 and 7 of the Deed of
Trust, where Coral Pearls had an obligation to preserve the priority of 125 Interests
lien by paying all taxes when due. (II C.R. at 223-24). If Coral Pearls failed to
pay the taxes, then 125 Interests was allowed to pay the taxes on behalf of Coral
14 Pearls. (II C.R. at 223). If 125 Interests opted to pay the taxes, then the amount of
the paid taxes became part of the debt owed under the Note. (II C.R. at 224). In
other words, the paid taxes were part of the debt owed under the Note that was
purchased by Nnah. In February of 2013, Greenberg, on behalf of 125 Interest, and
Nnah negotiated an agreement whereby Nnah would purchase the Note and Deed
of Trust for $683,920.10 (an amount set by Greenberg and 125 Interests without
Nnah knowing how the amount was calculated), and in exchange, 125 Interests
would assign to Nnah all of its rights and interests in the Note, Deed of Trust, and
Vendors Lien associated with the Richmond Property, without reservation. (II
C.R. at 205-07, 278). While Nnah believed that Coral Pearls owed less than the
demanded amount, he was willing to settle for the demanded $683,920.10 sum
because he had determined through an examination of the tax records that the
property taxes for 2011 and 2012 had already been paid and that he would succeed
to the note holder’s rights when he was assigned the Note. (II C.R. at 278-79).
Therefore, through the Assignment agreement with 125 Interests, Nnah paid
$683,920.10 for the right to be paid by Coral Pearls the entire debt, which included
the previously paid property taxes. (II C.R. at 205-07, 278-79, 223-24).
Additionally, the Note and Deed of Trust now become a binding contract between
Nnah, the noteholder succeeding to all rights under the Note, and Coral Pearls as
the maker of the Note. (See II C.R. at 205-07, 221-231, 261-65, 272-75). And
15 because Coral Pearls was in default on the Note, Nnah also had the right to
foreclose on the Richmond Property and recoup the amount owed to him under the
Note, which included the value of the property taxes paid under the Note and
pursuant to the Deed of Trust. (II C.R. at 221-231, 261-65).
However, Greenberg and 5600 Interests interfered with Nnah’s rights under
these two contracts when Greenberg directed 5600 Interests to seek a “refund”
from the Harris County Tax office of the 2011 and 2012 property taxes that had
been paid on the property, thereby decreasing the value of the Note and
encumbering the land with a tax burden that, at the time of the Assignment, had
already been satisfied. (II C.R. at 208-220, 233-34). Although Greenberg’s
affidavit and 5600 Interest’s applications to the Harris County Tax Office alleged
that the taxes has been paid by 5600 Interests “in error,” Nnah presented
conflicting summary judgment evidence showing that (1) 5600 Interests did not
pay the taxes in error, but instead the taxes were advanced on behalf of 125
Interests under the Note and pursuant to the Deed of Trust, (II C.R. at 201), (2)
Greenberg, as the sole owner and person in control of both 125 Interests and 5600
Interests, knew that the taxes has been paid pursuant to a Note and Deed of Trust
that had been previously assigned to Nnah, (II C.R. at 201, 283-96), and (3) it was
only after Nnah refused Greenberg’s demand to renegotiate the February 21, 2013
Assignment, that Greenberg, without Nnah’s knowledge or consent, changed his
16 position and first claimed that 5600 Interests paid the property taxes in error, (II
C.R. at 278-79, 201, 208-20). The result of this interference was a reduction in the
value of the Note, a re-burdening of the Richmond Property with a tax debt and
lien that had already been satisfied. Nnah was subsequently forced to pay an
additional $77,669.22 in back taxes and penalties to clear title to the property. (II
C.R. at 280, 235, 238-39, 278-81). Nnah would not have incurred these damages if
Greenberg and 5600 Interests had not interfered with his rights under his contracts
with 125 Interests and Coral Pearls.
The trial court, therefore, committed reversible error in dismissing Nnah’s
tortious interference claims against Greenberg and 5600 Interests and this Court
should remand the claim to the trial court for a trial on the merits.
B. The trial court improperly granted summary judgment on Nnah’s Texas Theft Liability Act claim because Nnah raised a genuine issue of material fact regarding his theft claim against 5600 Interests and the Greenberg parties no evidence motion for summary judgment failed to challenge Nnah’s theft claims against Greenberg and 125 Interests.
The trial court erred in granting summary judgment on Nnah’s theft claims
against Greenberg and 125 Interests. As detailed in Section I of this brief,
summary judgment is improper if it is granted on an element or claim not
challenged in the no evidence motion for summary judgment. Tex. R. Civ. P.
166a(i). The only theft claim challenged in the Greenberg parties’ no evidence
summary judgment motion was Nnah’s claim against 5600 Interests. (I C.R. at
17 145-46). However, Nnah pled individual theft claims under the Texas Theft
Liability Act against Greenberg, 125 Interests, and 5600 Interests. (I C.R. at 132).
The trial court, therefore, committed reversible error in dismissing Nnah’s theft
claims against Greenberg and 125 Interests, (II C.R. at 388), and this Court should
remand those claims to the trial court.
The trial court further erred in granting summary judgment on Nnah’s theft
claim against 5600 Interests. A person who commits theft by unlawfully
appropriating property with the intent to deprive the owner of property is liable for
the resulting damages. Tex. Civ. Prac. & Rem. Code ann. §§ 134.002-134.005.
Appropriation is unlawful if it is without the owner’s effective consent. §
134.002(2). Even if the theft is committed by someone on behalf of another, any
“person who commits theft is liable for the damages resulting from the theft” and
the victim may recover damages. Id. 5600 Interests challenged that there was no
evidence (a) that 5600 Interests unlawfully appropriated any specific property, (b)
that 5600 Interests intended to deceive Nnah, (c) that 5600 Interests was not an
owner of the property alleged to be stolen or that Nnah was the owner of that
property alleged to be stolen, and (d) that the owner didn’t consent to the theft. (I
C.R. at 145-46).
In response, Nnah produced more than a scintilla of evidence to raise a
genuine issue of material fact on each of these challenged issues. On March 1,
18 2013, Nnah filed the Assignment of the Note and Deed of Trust from 125 Interests
in the real property records of Harris County. (II C.R. at 205-07, 278-79). Nnah
then foreclosed against Coral Pearls and, on March 5, 2013, Nnah purchased the
Richmond Property at a foreclosure sale. (II C.R. at 278-79). Therefore, the
undisputed summary judgment evidence shows that on March 5, 2013, Nnah was
the owner of the Richmond Property, the value of which was based on many
factors including the inherent value of the property and, as investigated by Nnah
prior to his purchase of the Note, the added value that all taxes had been previously
paid on the property.
Nnah also showed that on March 1, 2013, Greenberg, on behalf of 5600
Interests, sought a refund of the 2011 and 2012 property taxes paid by 5600
Interests on the Richmond Property. (II C.R. at 208-20, 278-79). The March 1,
2013 application was denied and on April 2, 2013, 5600 Interests submitted a new
application for a refund of the taxes. (II C.R. at 208-20). On the date of this
second application, the evidence shows that Nnah was the record owner of the
Richmond Property. (II C.R. at 278-79). Although Greenberg’s affidavit and 5600
Interest’s applications to the Harris County Tax Office alleged that the taxes has
been paid by 5600 Interests in error, Nnah presented conflicting summary
judgment evidence showing that (1) 5600 Interests did not pay the taxes in error,
but instead the taxes were advanced on behalf of 125 Interests under the Note and
19 pursuant to the Deed of Trust, (II C.R. at 201), (2) Greenberg, as the sole owner
and person in control of both 125 Interests and 5600 Interests, knew that the taxes
has been paid pursuant to a note and deed of trust that had been previously
assigned to Nnah, (II C.R. at 201, 283-96), and (3) it was only after Nnah refused
Greenberg’s demand to renegotiate the February 21, 2013 Assignment that
Greenberg, without Nnah’s knowledge or consent, changed his position and
represented to the Harris County Tax Office (without informing Nnah) that
Greenberg had caused 5600 Interests to pay the property taxes in error (II C.R. at
278-79, 201, 208-20). Construed in the light most favorable to Nnah, this evidence
raises a genuine issue of material fact regarding whether 5600 Interests, acting
under the control of Greenberg, violated the Texas Theft Liability Act.
The trial court, therefore, committed reversible error in dismissing Nnah’s
violation of the Texas Theft Liability Act claim against 5600 Interests and this
Court should remand the claim to the trial court for a trial on the merits.
C. The trial court improperly granted summary judgment on Nnah’s declaratory judgment claim because it was proper for Nnah to ask the trial court to declare the meaning of a provision within the Assignment.
In Nnah’s second amended third party petition, Nnah requested a declaratory
judgment that the provisions in the Assignment between 125 Interests and Nnah,
which gave Nnah all of 125 Interests’ rights in the Note, Deed of Trust, and
Vendor’s Lien in the Richmond Property, meant that Greenberg, who owned and
20 controlled both 125 Interests and 5600 Interests, could not direct 5600 Interests to
seek a refund of property taxes that had been paid on behalf of 125 Interests
pursuant to the Note and Deed of Trust because all rights had been transferred to
Nnah (including the benefit of the taxes advanced under the Note and pursuant to
the Deed of Trust) and that the paid status of those taxes was part of the benefit
bargained for in the Assignment. (I C.R. at 136, II C.R. at 201).
Under the Texas Civil Practice and Remedies Code, a “contract may be
construed either before or after there has been a breach,” and “[a] person interested
under … writings constituting a contract … may have determined any question of
construction or validity arising under the … contract.” Tex. Civ. Prac. & Rem.
Code § 37.004(a).
In their no evidence summary judgment motion, the Greenberg parties allege
that there was no evidence of a justiciable controversy and that a declaratory
judgment was improper because Nnah was asking the trial court to issue an
advisory opinion regarding whether Harris County should have refunded the
property taxes to 5600 Interests. (I C.R. 146-47). This contention, however, is not
supported by the pleadings or the evidence. Nnah never asked the trial court to
opine on a hypothetical situation. (I C.R. at 136). Instead, Nnah asked the trial
court to construe the meaning of the Assignment, the substance of which was
presented to the trial court as summary judgment evidence. (I C.R. at 153-54).
21 The trial court, therefore, committed reversible error in dismissing Nnah’s
declaratory judgment claim and this Court should remand the case to the trial court
for a declaration of the meaning of the “all rights” provisions within the
Assignment.
III. The trial court erred in awarding Appellees Greenberg, 125 Interests, and 5600 Interests attorney’s fees because Mr. McCormick’s affidavit was insufficient to prove, as a matter of law, that the fees were reasonable and necessary.
In addition to the no evidence summary judgment motion, Greenberg, 125
Interests, and 5600 Interests also sought a traditional summary judgment on their
cross claim for attorney’s fees under the Texas Theft Liability Act. (I C.R. at 119).
Because the trial court erred in dismissing Nnah’s theft claims, the award of
attorney’s fees to the Greenberg parties was, of course, error. However, even if the
trial court had correctly dismissed the theft claims, an award of attorney’s fees was
still error because these Greenberg parties failed to meet their burden of presenting
competent summary judgment evidence proving the amount, necessity, and
reasonableness of the fees. See Tex. R. Civ. Pro. 166a.
Under the Texas Theft Liability Act, a prevailing party1 is to be awarded
attorney’s fees as long as the fees are both “reasonable and necessary.” Tex. Civ.
1 As detailed in section II(B) of Appellant’s Brief, the Greenberg parties only challenged the Texas Theft Liability Act claim as it related to Appellee 5600 Interests. Therefore, Appellants 22 Prac. & Rem. Code. § 134.005(b). Because reasonableness of the fees cannot be
presumed through judicial notice2, reasonableness is a question of fact that must be
established through competent evidence. See Smith v. Smith, 757 S.W.2d 422, 424-
426 (Tex. App.—Dallas 1988, writ denied) (stating that an agreement by a client to
pay a certain hourly rate is not proof of reasonableness); see also City of Laredo v.
Montano, 414 S.W.3d 731, 734-37 (Tex. 2013) (contrasting one attorney’s general
testimony without records, held to be insufficient, with co-counsel’s sufficient
detailed testimony).
The only summary judgment evidence relating to the necessity and
reasonableness of the Greenberg parties’ attorney’s fees was an affidavit by their
attorney, Andrew McCormick. McCormick’s affidavit, however, is conclusory
and devoid of any substance relating to how the alleged fees were calculated or the
reasonableness of these alleged fees.3 (I C.R. at 150-52); See City of Laredo, 414
S.W.3d at 734-35. Not only did McCormick’s affidavit not include any billing
statements, contemporaneously generated time records, or details regarding
Greenberg and 125 Interests cannot be considered prevailing parties for determining attorney’s fees. 2 In our case, the trial court was not allowed to take judicial notice of usual and customary fees because the statute authorizing the award of attorney’s fees does not allow for judicial notice, the basis for the award of attorney’s fees was not Section 38.004 of the Texas Civil Practice and Remedies Code, and judicial notice is only allowed when there has been a trial on the merits. See Tex. Civ. Prac. & Rem. Code § 38.004. 3 Nnah objected in his summary judgment response to McCormick’s affidavit on the same grounds and repeat his objections in his motion for new trial. (II C.R. at 190-92). 23 specific tasks performed, it didn’t even state how many hours were spent defending
against the Texas Theft Liability claim. (I C.R. at 150-52). McCormick further
contradicts himself by first stating that the fees for defending the Texas Theft
Liability Act claim were segregated from the other fees and then later stating that
the fees were not segregated. (I C.R. at 152). And while the affidavit recites that
he charged “his client” (singular) a total of $50,052.50 in attorney’s fees, and that,
in his opinion, “30% of such is a reasonable fee for defense of the theft claim,” he
provides no basis for why 30 percent is reasonable and he fails to segregate his fees
amongst his various clients. (I C.R. at 152). The affidavit is incompetent
summary judgment evidence because it is not clear, positive, direct, otherwise
credible, free from contradictions and inconsistencies, and could not have been
readily controverted. Tex. R. Civ. P. 166a(c).
Therefore, even if this Court affirms the summary judgment on the
substance of the Texas Theft Liability Act claim, this Court should remand this
case to the trial court for a determination of reasonable and necessary attorney’s
fees.
CONCLUSION AND PRAYER
The trial court erred in granting the Greenberg parties’ no evidence summary
judgment motion and dismissing all of Nnah’s Breach of Contract, Tortious
Interference, Texas Theft Liability Act, and declaratory judgment claims because
24 (1) not all of Nnah’s claims were challenged in the Greenberg parties’ motion, and
(2) Nnah produced summary judgment evidence raising a genuine issue of material
fact on each challenged element and claim. Each of Nnah’s claims that are the
subject of this appeal are based on Appellees’ actions in obtaining a $71,680.14
property tax “refund” from the Harris County Tax Office on the Richmond
Property. And while Greenberg and 5600 Interests attempted to assert that 5600
Interests was entitled to the refund because it paid the taxes in error, Nnah
presented summary judgment evidence controverting this assertion and showing
that (1) 5600 Interests paid the taxes on behalf of 125 Interests under the rights
given the holder of the Note pursuant to the Deed of Trust, and (2) it was only after
Nnah refused Greenberg’s demand to renegotiate the Assignment that Greenberg
first claimed (to the Harris County Tax Office but not to Nnah) that the taxes were
paid “in error.” This evidence raises a genuine issue of material fact precluding
summary judgment.
Further, the trial court erred in granting Appellees Greenberg, 125 Interests,
and 5600 Interests traditional motion for summary judgment on their claim for
attorney’s fees under the Texas Theft Liability Act because (1) only the claim
against 5600 Interests was challenged in the summary judgment motion,
preventing any award of attorney’s fees incurred on behalf of Greenberg and 125
Interests, and (2) the Greenberg parties failed to meet their burden of presenting
25 competent summary judgment evidence proving the amount, necessity, and
reasonableness of the attorney’s fees.
Therefore, Appellant, Jim-Daniels Nnah, respectfully requests this Court to
reverse the trial court’s grant of summary judgment in favor of Appellees David
Neil Greenberg, 125 Interests, Inc., and 5600 Interests, Ltd., and remand this case
for a trial on the merits.
Respectfully submitted,
/s/ George F. May _______________________________ George F. May TWOMEY | MAY, PLLC Lori Twomey State Bar No. 24037621 lori@twomeymay.com State Bar No. 24037050 2 Riverway, 15th Floor Houston, Texas 77098 (713) 659-0000 (832) 201-8485 - Facsimile george@twomeymay.com
Attorneys for Appellant
26 CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i), the undersigned certifies the brief complies with the type-volume limitation of Rule 9.4(i)(2)(3).
1. EXCLUSIVE OF THE EXEMPTION PORTIONS IN TEX. R. APP. PRO 9.4.(i)(1), THE BRIEF CONTAINS: 6,464 words
2. THE BRIEF HAS BEEN PREPARED: in proportionally spaced typeface
using: Microsoft Word for Mac 2015 in Times New Roman 14-point font.
/s/ George F. May/ ______________________ George F. May
27 CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I certify that I have served this document on all other parties, which are listed below on September 29, 2015 as follows:
Andrew P. McCormick ammccormick@mlm-lawfirm.com Laurie A. Munoz lmunoz@mlm-lawfirm.com McCormick, Lanza & McNeel, LLP 4950 Bissonnet Street Bellaire, Texas 77401 (281) 752-6329 (fax)
By (check all that apply) personal delivery mail commercial delivery service X fax or eservice X email: ammccormick@mlm-lawfirm.com, lmunoz@mlm-lawfirm.com
/s/ George F. May/
George F. May Date: September 29, 2015
28 APPENDIX
TAB 1 – Trial court’s original order granting summary judgment
TAB 2 – Trial court’s amended order granting summary judgment
TAB 3 – Trial court’s order granting non-suit (making summary judgment final)
TAB 4 – Assignment of promissory note and deed of trust from 125 Interests to Jim-Daniels Nnah
TAB 5 – David Neal Greenberg admission that property taxes were paid under the note and pursuant to the deed of trust TAB 1 Trial court’s original order granting summary judgment 8/21/20145:18:03 PM Chris Daniel· District Clerk RECOROER'S MEMORANOUM Harris County ThIS ,nslrumemIS 01 poor Cp.Jala, Envelope No: 2245696 alille Utile rJ I/I1agIl'l\l By : PRINCE, SASHAGAYE S Cause No. 2012-23146
DG INTERESTS, INC. § IN THE CIVIL DlSTRlCT COURT Plaintiff § § v. § OF HARRlS COUNTY, TEXAS § JIM-DANIELS NNAH § 270" JUDICIAL DISTRlCT Defendant § § lIM-DANlELS NNAH § Counter-Plaintiff and Third-Party Plaintiff § § and CORAL PEARLS, LLC, § Third-Party Plaintiff § § v. § § DG INTERESTS, INC. § Counter-Defendant § § 125 INTERESTS, INC., § 6219 INTERESTS, LTD_ nIkIa 5600 § INTERESTS, LTD., DG REALTY, LLC § DAVID NEAL GREENBERG, § GREENBERG & COMPANY, INC. and § GREENBERG & ASSOCIATES, INC. § Third-Party Defendants §
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT 3-l After considering Counter-Defendant, DG Interests, Inc., and Third-Party Defendants, 125 6-1 0-1 7-f Interests, Inc., 6219 Interests, Ltd. nIkIa 5600 Interests, Ltd., DG Realty, LLC, David Neal Greenberg, I-I ~--I Greenberg & Company, Inc., and Greenberg & Associates, lnc. 's no-evidence motion for summary
judgment and traditional summary judgment, the pleadings, the response, the affidavits, and other
evidence on file, the Court
GRANTS Counter-Defendant, DG Interests, Inc., and Third-Party Defendants, 125 Interests,
Inc. , 6219 Interests, Ltd. nlkla 5600 Interests, Ltd ., DG Realty, LLC, David Neal Greenberg,
Greenberg & Company, Inc., and Greenberg & Associates. Inc.'s no-evidence summary judgment and
traditional summary judgment.
369 IT IS ORDERED, ADJUDGED AND DECREED that Counter-Plaintiff and Third-Party
Plaintiffs' causes of action for (I) breach of contract, (2) tortious interference with contract and
business relations and expectancy, (3) theft under the Texas Theft Liability Act, (4) money had and
received, and (4) declaratory judgment are dismissed.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Counter-Defendant, DG
Interests, Inc., and Third-Party Defendants, 1251ntere5ts, Inc., 62 19 Interests, Ltd. nlk/a 5600 interests,
Ltd., DO Realty, LLC, David Neal Greenberg, Greenberg & Company. Inc., and Greenberg &
Associates,lnc., do have and recover judgment of. from and against Counter-Plaintiff and Third-Party Q - :l- o.I- t Plaintiff, Jim Daniels Nnah and Coral Pearls, LLC, reasonable and necessary attorney's fees in the
amount 0[$15,000.00 pursuant to the Texas Theft Liabi lity Act, all costs incurred herein together with
interest on said judgment at the rate of five (5%) percent per annum from the date hereof until paid,
for all of which let execution issue.
All relief not expressly granted herein is denied. ·
SIGNED on---t; ~ f ,20 14.
PRE~ APPROVED AS TO FORM & SUBSTANCE:
BY:L~~¢;b~___ ANDREW P. McCbRMlCK State Bar No. 13457100 LAURIE A. MUNOZ Stat_ Bar No. 24071782 4950 Bissonnet Street Bellaire, Texas 7740 I (713) 523-0400 I Fax (7 13) 523-0408
Attorney for Counter-Defendant & Third-Party Defendants
370 TAB 2 Trial court’s amended order granting summary judgment 1/21/20154:55:38 PM Chris Daniel - District Clerk Harris County RECORDER'S MEMOR,AtlDUM Envelope No: 3852661 This IIlSIrurneoIlS 01 pool' ~~t, a\ the lome 0I11l1391n1i1 By : PRINCE, SASHAGAYE 5 Cause No. 2012-23146
DG INTERESTS, INC. Plaintiff § § IN THE CIVIL DISTRICT COURT P-3 § v. § OF HARRIS COUNTY, TEXAS )-
JIM-DANIELS NNAH Defendant § § § 270" JUDICIAL DISTRICT ~i X § JIM-DANIELS NNAH § Counter-Plaintiff and Third-Party Plaintiff § § and CORAL PEARLS, LLC, § Third-Party Plaintiff § § v. § § DG INTERESTS, INC. § Counter-Defendant § § 125 INTERESTS,INC., § 6219 INTERESTS, LTD. nlkla 5600 § INTERESTS, LTD., DG REALTY, LLC § DAVID NEAL GREENBERG, § GREENBERG & COMPANY,INC. and § GREENBERG & ASSOCIATES, INC. § Third-Party Defendants §
AMENDED ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
After cons idering Counter-Defendant, DO Interests, Inc., and Third-Party Defendants, 125
lnterests, Inc., 6219 Interests, Ltd. nIkIa 5600 Interests, Ltd., DO Realty, LLC, David Neal Greenberg,
Greenberg & Company, Inc., and Greenberg & Associates, Inc. 's no-evidence motion for summary
judgment and traditional summary judgment, the pleadings, the response, the affidavits, and other
evidence on fi le, the Court
GRANTS Counter-Defendant, DO Interests, lnc. , and Thi rd-Party Defendants, 125 Interests,
Inc., 62 19 Interests, Ltd. n/kJa 5600 Interests, Ltd., DG Realty, LLC, David Neal Greenberg,
Greenberg & Company, Inc. , and Greenbe rg & Associates, Inc.'s no-evidence summ ary judgment and
-1 -
388 traditional summary judgment.
IT IS ORDERED, ADJUDGED AND DECREED that Counter-Plaintiff and Third-Party
Plaintiffs' causes of action for (1) breach of contract, (2) tortious interference with contract and
business relations and expectancy, (3) theft under the Texas Theft Liability Act, (4) money had and
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that C,,"lItel-Def Interests, IR.o, anti Third-Party Defendants, 125 Interests, Inc., 6219 Interests, Ltd. nlk/a 5600 Interests, ""'" Ltd., DG Realty, bbl':, David Neal Greenberg, GreeRb€lrg & Ce1+lf8RY, lAO ., BRe GI'eeHberg &. Associates, Inc., do have and recover judgment of, ITom and against Counter-Plaintiff and Third -Party Plaintiff, Jim Daniels Nnah, reasonable and necessary attorney's fees in the amount of $15,000.00 pursuant to the Texas Theft Liability Act, all costs incurred herein together with interest on said judgment at the rate offive (5%) percent per annum from the date hereofuntil paid, for all of which let execution issue. All relief not expressly granted herein is denied. ~ SIGNED on ~ 'YO ,20J4: JAN foZ015 ---- APPROVED AS TO FORM & SUBSTANCE: McCORMICK, LANZA & McNEEL, LLP BY:.__ ~~~~_~~~~~~-~-________ ANDREW P. McCORMICK State Bar No. 13457100 LAURIE A. MUNOZ State Bar No. 24071782 4950 Bissonnet Street Bellaire, Texas 7740 I (713) 523-0400 I Fax (713) 523-0408 -2- 389 TAB 3 Trial court’s order granting non-suit (making summary judgment final) 2/2/2015 2:02:06 PM Chris Daniel - District Clerk Harris County Envelope No: 3985341 By: PRINCE, SASHAGAYE 5 Filed: 21212015 2:02:06 PM NO. 2012-23146 DG INTERESTS, INC. Plaintiff, § § IN THE DISTRICT COURT OF p-\ ~ § v. § HARRIS COUNTY, TEXAS § JIM-DANIELS NNAH § Defendant § 270" JUDICIAL DISTRICT 8Pf0!-';;') 3rt>1I II- i) ORDER GRANTING NONSUIT OF JIM-DANIELS NNAH'S CLAIMS AGAINST HARRIS COUNTY WITHOUT PREJUDICE On this day, in the above referenced cause. the Court considered Defendant Jim-Daniels Nnah's Notice of Nonsuit of his claims against Harris County, and Request for Order of Nonsuit , After considering the notice and request, any response, the pleadings on file, and the argument of counsel, if any, it appears to the Court that an Order of Nonsuit should be entered. It is, therefore, ORDERED, ADJUDGED, AND DECREED that the claims that Defendant lim-Daniels Nnah has asserted against Harris Counly in th~ abuv~ rererenced lawsuit are hereby nonsuited and that such nonsuit is with prejudice as to refiling same. SIGNED this 12- day of ~015. FEB 1 72015 ~ JUDGE PRESIDING Approved and Entry Requested: Twomey I May, PLLC lsI George F. Mayl __ George F. May - TBA No. 24037050 1h 2 Riverway, 15 Floor Houston, Texas 77056 Telephone: (713) 659-0000 Telecopier: (832) 20 1-8485 Email: george@twomeymay.com Attorneys for lim-Daniels Nnah 393 TAB 4 Assignment of promissory note and deed of trust from 125 Interests to Jim-Daniels Nnah -, " ASSIGNMENT : 20:1:·30..09>:6-'772 03,F()1:.F2013. RPl .120 . 00 THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS : COUNTY OF HARRIS THAT 125 INTERESTS, [NC., a Texas corporation (hereinafter called "Assignor"), for and in . consideration of the sum of Ten Dollars (SI0.00) and oth~ .good and valuable I~' considerations to' Assignor in hand paid by Jim Daniels Nnah, whose address is ~ ,t ; o,,'i kcJ9CV""cKHouston, Texas 77~ (hereinafter called " Ass ignee"), the receipt and s ufficiency of w h ich is hereby acknowledged, has GRANTED, TRANSFERRED and ASSIGNED, and does by these p resents GRANT. TRANSFER and ASSIGN, unto said Assignee, without !ccourse on Assignor. the following : . ... . 1. Promissory note ("Note") dated June I , 20 11 , exec4ted by CORAL PEARLS. LLC. a Texas limited liability company ("Borrower") payable in ins~lImen~ as therein provided to the order of DO INTERESTS. IN'e., in the original principal wnotint of $940,000.00, which Note was ass igned by DG INTERESTS, INC. to Assignor under an .A ssigrunent dated on or about July 25, 2012, recorded under Clerk' s File No. 20120336478 in the Official Public Records of Real Property of Harris County; Texas; 2. All rights, titles, interests, privileges, c laims, demands and equities existing and to exist in connection with or as security for the payment of said Note and the indebtedness evidenced thereby, existing under lh;e tenns and provis ions of the Note, including without limitation the following: Vendor's Lien retained in Deed dated of approximately eve n date with the Note from DO INTERESTS, mc. to Borrower recorded in the Real Property Records of Harris County, Texas, covering the Property (defined below); . Deed of Trust, Security Agreeme nt and FinanCing Statement (the "Deed of Trust") of even date with the Note, executed by Borrower in favor of MARK. J. TORMEY, D- Trustee. and DO INTERESTS, INC., as "Beneficiary." and being recorded under County C lerk's File No . 20110229585 in the Real Property Records of Harris County. T e xas. covering the property described as ALL THAT CERTAIN" 0.426 ACRE OF LAND OUT OF LOT ONE HUNDRED TWENTY-ETGHT (128) IN BLOCK TWO (2) OF GLENHAVEN ESTATES, SECTLON 2, AN ADDLTION IN HARRlS COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN VOLUME 19, PAGE 59. OF THE MAP RECORDS OF HARRlS COUNTY, TEXAS, AND BEINO THE SAME AS THAT CERTAIN CALLED 0.42615 ACRE TRACT SITUATED IN THE ROBERT VINCE SURVEY, A-77, HAR1US COUNTY, TEXAS, AND D E SCRIBED IN WARRANTY DEED. DATED NOVEMBER II, 1991, FROM JAMES P . LONGNECKER TO RlCARDO POBLETE, TRUSTEE. SAID 0.426 ACRE BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS IN EXHIBIT "A" ' AITACHED THERETO AND MADE A PART THEREOF FOR ALL PURPOSES (the "Property"); and Assignment of Rents and Leases (the" Assignment of Rents") of even date with the Note. executed by Borrower in favo r ofDG INTERESTS, ll'lC., as A s s igne e , recorded in the Real Property Records of Harris County. Texas, covering the Property. TO HAVE AND TO HOLD said Note, together and along with all rights, titles, interests, liens, security interests, privilege s, claims, demands and equities now or hereafter held by Assignor in connection therewith or a s security therefor unto Assignee, its successors and assigns forever. C :\OOCUMENTS AND SETT1NGS\DAVIDI\LOCAL SETTINGS\TEMPORARY INTERNET FILE S\CONTENT_ OUTLOOK\BYN3WJAK\ASSIGNME NTOFCORALNOTE . DOC~ RECORDER'S MEMORANDUM Exhlbl l (' ) Nut Attached -_ .. - ---~ Any provision herein which restrict lhe salc, rental or use of the descri bed Real Property beca use of color or race is invrtlid an d une nforceab le under t hc Federal Law. Confidentia l Info r mation may have been redacted from the document in compliance with the Public Information Act. \\ \\ tlIIIUIII 11 A Certified Copy "", ~ HAIl b 11111 Attest: 7/ 18/20 13 ..' ~~...:'-.O ••••••• !I'Ij~... ". _-.. ~~ -~"'- ~.ft...: • .... ~ ... c::-- -... .. • Stan Stanart, County Clerk ~S- ., ~. '0 · =u ;:_ _ :~• 0:-= 0. o~ : -fS -., . ' ~y:;~.... _. ... • "'C'~ : ...... ~ ~ _ ~ -'....... .....~ -,
~~ __~~~~",,~r.n~~r- stacey Renee Guerrero __~Depury ~"" '" oJ _1- ., ...,"~ c.' , 'II JI'\. ",. 1"'11111\1\\\ 205 ...;..' .I T his Assig nm en t is m a d e wit h o u t w a r ra nty, express or Implied , Qnd is mad e w itho ut reco urse o n A ss igno r . [N TESTIMONY WHEREOF, 125 fNTERESTS, INC., a Texas corporation, bas caused this ins trument to be executed by its du1y authorized officers and its corpomte seal to be affixed hereto, thi s the 'Z \ s.-1' day of February, 2013. 125 STS, INC., a Texas corporation \1If'...' BY::~~~~~~~~~~========== Name: Dav1.d Gr eenberg Title:Prea:1.dent THE STATE OF TEXAS COUNTY OF This instrument was acknowledged before me on the .> I S"'- day of F:cbruary, 2013, by GAI/ I D <;?R.[-:J..:;,\r t'h ublic, Stat exas RETURN TO: Two",''y / """'!, ;?Uc.. jJt) ,8P)" C;,. 7cf K;~y-"'" T,t' 773?5' -~57'f C:\DOCVM ENTS ANO SliTTfN05lDA VIO!\l..OCAI. SI!TTINOS'.TI!MPORARY INTER.NBT FlLES'COtn'ENT.01Trt.OOK\BYW3W1AK\ASS!GNMEN'TOf"CORAI.NOTE.OOCX ·l· Any provision herein which restrict the sale, rental or use ofthc described Real Proper ty because of color or race is invalid and unenforceable under the Federal Law. Confidential inCormation may have bccn rcdacted from the document in compiillOce with t he Public Informatio n Act. \\\\UIIIIIIIIII. A Certified Copy ,,\\\ ~ HAR""'" Attest: 7/1812013 ~' ~6..: .. ~~"':'-.O .•••••• !I'/.r ~i . . .,..~ ·" '0'<-~ Stan Stan art, County Clerk .::~- . ••' .- S ""J :" ... c::.~ Ha rris County, Texas :: 0 : ..--' --.,.. .. :'-1 : ..-;2:= :-.,=- _~_=......-',-,=.,..,. ~===___ ... ... ~ -;~4:." ;; '. ........ ~ .' ....7:="" ~ "'.. DeputY ~:- ~ "'00·· ..••••-.c.'~ _~_ . (» ;,- ':!<.>::' ~ Stacey Renee Guerrero "'1.'111111111111\\\' 7\ " "" 206 MAR - 1 2013 .s-,.'-_ ;i;.f-_...:e- COUNTY OlJIAIC HAA .... COU""""'. TllKA8 ~ - -n r rn 0 - C?- Oo ·· !~ - -- -- - - - - -- - Any provision herein which restrict the sale, rental or use of the described Real Property because of color or race is invalid and unenforceable under tbe Federal Law. Confidential information may have been redacted from the document in compliance with the Public Informatio n Act. A Certified Copy Attest: 7118/2013 Stan Stanar!, County Clerk Harris Counly, Texas _~_;;:----> """'~_--=-_ _ '-___ Stacey Renee Guerrero DcputY 207 TAB 5 David Neal Greenberg admission that property taxes were paid under the note and pursuant to the deed of trust George May From: Jim Daniels Flag Status: Flagged Sent from my iPhone Begin forwa rded message: From: David Greenberg M r. Vick We agreed through our bankruptcy attorney t o sell the note t o Mr. Nnah for th e unpaid balance of the note. We initially calculat ed the sum of $683,920.10 due under the note w hi ch we received yesterday evening by w ire transfer. We double checked our calculations pri or to com pleting the sale and rea li zed that we fail ed t o include the ad valorem property t axes for yea rs 2011 and 2012. These t axes totaled $71,780.24 and were adva nced under the note and pursuant t o the deed of trust . Please w ire transfer$7 1.780.24 to our account so that we ca n complet e thi s transaction on the agreed terms by Monday February 25, 2013 . Thanks. David Greenberg Greenberg & Company 5959 Richmond, Suite 440 Uouston, Texas 77057 Tel. 713·778·0900 Fax. 713·782·7445
Jim-Daniels Nnah v. 125 Interests, Inc., 6219 Interests, Ltd. N/K/A 5600 Interests, Ltd., and David Neal Greenberg (Jim-Daniels Nnah v. 125 Interests, Inc., 6219 Interests, Ltd. N/K/A 5600 Interests, Ltd., and David Neal Greenberg) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.