Affirmed; Opinion Filed July 30, 2018.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00457-CV
MOHAMED AHMED, Appellant V. HINGA MBOGO, Appellee
On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-06400
MEMORANDUM OPINION Before Justices Lang-Miers, Myers, and Boatright Opinion by Justice Myers This is an appeal from a final judgment in favor of appellee Hinga Mbogo following
motions for summary judgment and a four-day jury trial. In twenty-three issues, appellant
Mohamed Ahmed contests the trial court’s denial of his motion for summary judgment; the legal
and factual sufficiency of the evidence supporting the jury’s verdict; the trial court’s refusal of
appellant’s proposed jury questions; and the granting of appellee’s motion for partial summary
judgment. We affirm.
BACKGROUND AND PROCEDURAL HISTORY
Appellee Hinga Mbogo is an automotive mechanic. In the 1980s, he moved to Dallas and
began working as a certified auto mechanic. In 1986, appellee leased a portion of a property
located at the 3500 block of Ross Avenue, in Dallas, Texas, for the purpose of owning and
operating an automotive repair business, Universal Motors. With the help of two other mechanics, Martin Nganga and Charles Kaguma, appellee operated Universal Motors on the property until
June of 1991, at which point the property’s owner approached appellee about buying the property
––three lots in city block 513 of the City of Dallas, Texas, located at 3512, 3516, and 3520 Ross
Avenue––for $178,000, with an up-front $30,000 down payment. Appellee wanted to purchase
the property but neither he nor his two mechanics had sufficient funds to make the down payment.
Appellee learned, however, that a former auto repair customer, appellant Mohamed Ahmed, who
was not a mechanic, might be interested in contributing the money for the down payment in
exchange for an ownership interest in the business.
The parties’ discussions ultimately resulted in the purchase of the property and the
formation of a new business entity, “Universal Auto Repair, Inc.,” that operated a new automotive
repair business in place of the one appellee previously operated. They signed a ten-year note for
$178,080; appellant contributed the $30,000 down payment for the property’s purchase. Appellee
contributed the automotive repair business he already operated on the property, along with its tools
and equipment. Three of the four persons involved––appellee, Nganga, and Kaguma–––testified
that their understanding of the parties’ oral agreement was that for their interest in the business
and property to vest, they had to work full time for the business for ten years, and anyone who left
the business in the first ten years of operation forfeited his ownership interest. As appellee
described it: “If anybody left before the ten-year note matured, or before ten years, he would lose
his . . . share in the company. He would lose everything. If he walked away, that was it.” Appellant
confirmed the existence of the ten-year agreement but testified it did not apply to him.
On June 21, 1991, appellant completed and submitted to the Texas Secretary of State
articles of incorporation naming himself, appellee, Kaguma, and Nganga as the initial board of
directors of Universal Auto Repair, Inc. The ownership interest was to be divided four ways, with
each person getting a 25 percent share, and each of the four owners’ interest included an ownership
–2– interest in the property. Appellee testified the business agreement was between himself, appellant,
Kaguma, and Nganga, but for tax reasons his sister Mary Mbogo, who lived in Miami, was named
on the warranty deed instead of appellee. From 1997 until 2014, Mary Mbogo was listed as a co-
tenant on the warranty deed for the property alongside appellant, Kaguma, and Nganga. On
December 23, 2014, she executed a general warranty deed transferring her interest to appellee.
The evidence at trial showed she was not a party to the original agreement, she claimed no
ownership interest in the property, and that she was a “stand in” for appellee and held title on his
behalf.
After Universal Auto Repair was up and running, the parties agreed that appellant,
appellee, Nganga, and Kaguma would each receive $350 a week in salary when funds were
available, and any money remaining was to be divided between them. Appellee testified that the
first few years of the business were “okay,” but the parties soon started fighting among themselves
because “[t]here was not enough money.” At times, after the business expenses were paid,
including the note for the property, there were not enough funds to pay everyone their salaries.
Kaguma testified that the agreed $350 salary was a “[h]uge pay cut” for him, and that “there were
times we went without.”
Sometime in 1994, Charles Kaguma decided to leave the business and relinquished his co-
ownership interest in the business and the property, telling the jury he felt he had no choice because
“[i]t became impossible for me to survive on $350 a week when it was available.” The following
year, in 1995, Martin Nganga also relinquished his interest. For the next two years, appellant and
appellee operated the business alone, with some assistance from non-mechanic “helpers.”
Appellee testified that it was difficult to operate the business without experienced mechanics to
help him and that he was working long hours, sometimes staying until 10:00 p.m. at night and
working seven days a week. To supplement the business’s income, appellant and appellee decided
–3– to purchase a tow truck in 1995.
In late May or early June of 1997, not long after securing a towing contract with AAA,
appellant quit Universal Auto Repair, closing the business’s checking account (after withdrawing
the funds on deposit) and starting his own towing business. Appellant also took the tow truck,
which he claimed he owned. Appellee continued paying the expenses for the property’s upkeep,
the mortgage payments, the tax assessments, and the insurance. Somewhere around a $95,909
principal balance remained on the property when appellant left the business.
In October of 1997, after a few months of operating Universal Auto Repair alone, appellee
formed a new, solely-owned, automotive repair business called Hinga’s Automotive. Along with
changing the store-front signage from Universal Auto Repair to “Hinga Auto Repair,” appellee
registered his company with the Texas Secretary of State as “Hinga’s Automotive;” changed the
business’s uniforms to Hinga’s Automotive from Universal Auto Repair; changed the locks; built
an extension on the back of the building; and otherwise exercised control over the property.
Appellee made these changes without appellant’s authorization or consent. Appellee also obtained
warranty deeds from Kaguma and Nganga in June of 1997 conveying their interest in the property
to appellee.
In August of 2001, appellee received notice that the property’s note was maturing. As he
had been doing since appellant’s departure from the business, appellee paid the remaining amounts
due under the note and received, in December of 2001, both the property’s deed and a release of
the lender’s lien.
After holding the property deed for almost fifteen years, appellee approached appellant
about getting his name removed from the deed. Appellant indicated a willingness to help clear the
cloud on the property’s title if paid “the right price.” According to appellee, he demanded
$200,000. Unwilling to pay for what he believed he already owned, appellee filed the underlying
–4– adverse possession lawsuit on June 3, 2015.
In his live pleading—the plaintiff’s third amended petition—appellee asserted a claim for
adverse possession against appellant, and alternative claims against him for breach of contract and
for partition and contribution/accounting. Appellee based his claims on the fact that, among other
things, appellee, his mechanics, and appellant had agreed to form, and to equally co-own,
Universal Auto Repair; each co-owner’s interest in Universal Auto Repair included an equal
ownership share in the property; and any co-owner who quit Universal Auto Repair before the
business’s tenth anniversary automatically forfeited his interest in the business and the property to
the remaining co-owners. Appellee further alleged that, upon quitting Universal Auto Repair in
June of 1997, appellant automatically forfeited to appellee (the sole remaining co-owner) whatever
interest he had in the property. Appellee also argued that even if appellant retained an interest in
the property, appellee acquired that interest by adversely possessing the entire property in
accordance with the ten-year limitations period in section 16.026 of the Texas Civil Practice and
Remedies Code.
Appellant answered and counterclaimed. Appellant’s live pleading—the defendant’s third
amended counterclaim—asserted counterclaims against appellee for fraud, statutory fraud,
fraudulent inducement, breach of fiduciary duty, conspiracy, purchase money resulting trust,
declaratory judgment, and an accounting. Appellant’s live answer—the defendant’s first amended
answer—included three verified denials challenging appellee’s standing and capacity to sue. It
also included the affirmative defenses of estoppel, waiver, assumption of the risk, statute of frauds,
statute of limitations, fraud, illegality, and unclean hands. Appellant’s counterclaim argued that
he, not appellee, owned 100 percent of the property, pointing out (among other things) that
appellee’s sister was the fourth co-owner of the property; she failed to contribute the agreed-to
amount pledged for her co-equal interest; appellee’s post-1997 possession of the property was not
–5– adverse to appellant because, after appellant left the business, appellee just managed the property
for appellant’s benefit; and appellant was the only co-owner who made any contributions towards
the property’s purchase.
Before trial, appellee moved for partial no-evidence and traditional summary judgment on
appellant’s counterclaims and affirmative defenses. Appellee moved for no-evidence summary
judgment on appellant’s fraud, fraudulent inducement, statutory fraud, breach of fiduciary duty,
and conspiracy counterclaims. He also moved for no-evidence summary judgment on appellant’s
estoppel, waiver, statute of frauds, fraud, and unclean hands affirmative defenses. He sought
traditional summary judgment on appellant’s breach of contract, fraud, statutory fraud, fraudulent
inducement, declaratory judgment, breach of fiduciary duty, and conspiracy counterclaims, and
his assumption of the risk and illegality affirmative defenses.
The trial court initially denied appellee’s summary judgment motion, but later, after
appellee filed a “motion for reconsideration and its amended no-evidence and traditional motion
for partial summary judgment,”1 the court granted partial summary judgment on appellant’s
“claims of fraud, fraudulent inducement, statutory fraud, breach of fiduciary duty, declaratory
judgment and conspiracy,” and his “affirmative defenses of assumption of the risk, estoppel,
waiver, statute of frauds, fraud, unclean hands[,] and illegality.” The trial court denied partial
summary judgment as to appellant’s claim for breach of contract because it found appellant had
never asserted such a claim, and the court found and ordered that because the pleading deadline
had passed and appellant had not asserted a breach of contract claim, appellant would not be
allowed to amend his pleadings and assert such a claim.
1 Appellee’s reconsideration motion did not specifically move for summary judgment on appellant’s affirmative defenses of estoppel, waiver, statute of frauds, unclean hands, or illegality, as appellee had done in his original summary judgment filing, but in his reconsideration motion appellee specifically incorporated the arguments in his previous motion by reference, stating that he “re-urges the arguments in its Original Motion (and Plaintiff incorporates herein, as if set forth in full, the briefing and attachments to the Original Motion) in an attempt to narrow the issues for trial as outlined below.”
–6– Appellant also moved for summary judgment on appellee’s affirmative claims for relief on
both traditional and no-evidence grounds. More specifically, appellant moved for no-evidence
partial summary judgment on appellee’s adverse possession claim, and for traditional summary
judgment on appellee’s adverse possession claim and the breach of contract and accounting claims.
The trial court granted appellant’s motion as to appellee’s breach of contract action, but denied it
as to appellee’s adverse possession claim.
The adverse possession claim was submitted to a jury, which found that appellee peaceably
and adversely possessed the Ross Avenue property for at least ten years before he filed suit on
June 3, 2015.2 Pursuant to the jury’s verdict, the trial court entered a final judgment awarding
appellee fee simple title to the entire property, and rendering judgment that appellant take nothing.
This appeal followed.
DISCUSSION
I. Denial of appellant’s motion for summary judgment
In his first issue, appellant argues the trial court erred in denying his summary judgment
motion challenging appellee’s adverse possession claim on both traditional and no-evidence
grounds.
Texas law generally prohibits appellate review of a trial court’s interlocutory order
denying a party’s motion for summary judgment. See Tex. Mun. Power Agency v. Pub. Util.
Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007) (recognizing that the denial of summary
judgment is normally not appealable); Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.
1996) (“The general rule is that a denial of a summary judgment is not reviewable on appeal.”).
There are, however, two recognized exceptions to this rule: (1) when a statute expressly authorizes
2 The jury also found that $120,000 was fair rental value of the property that should be paid to the owners of the property during the ten-year period appellee adversely possessed it, a finding that is not challenged on appeal.
–7– an appeal of a denied summary judgment motion, see, e.g., TEX. CIV. PRAC. & REM. CODE ANN. §
51.014(a)(5), (6), and (13), or (2) when both parties move for summary judgment on the same
ground or grounds and the trial court grants one motion and denies the other. See In the Interest
of J.J.F.R., No. 04–15–00751–CV, 2016 WL 3944823, at *1 (Tex. App.––San Antonio July 20,
2016, no pet.) (mem. op.).
In this case, the parties did not file competing summary judgment motions on appellee’s
adverse possession claim; only appellant moved for summary judgment on that claim. When the
trial court denied appellant’s summary judgment motion on the adverse possession ground, the
court did not contemporaneously (or subsequently) enter another order that, together with the
complained-of summary judgment order, fully disposed of appellee’s adverse possession claim.
Resolving that claim was the province of the jury. And no statute authorizes an appeal from the
denial of appellant’s motion for summary judgment. Therefore, appellant may not appeal the trial
court’s order denying his motion for summary judgment. We overrule appellant’s first issue.
II. Legal sufficiency of the evidence
In his issues two, three, four, and five, appellant argues the evidence is legally insufficient
to support the jury’s finding of adverse possession as to appellant. More specifically, appellant
contends the evidence is legally insufficient because a partnership purchased the Ross Avenue
property and owned it; appellee had to adversely possess the property for twenty-five years and he
did not do so; appellee’s sister, Mary Mbogo, was a co-tenant and her name was listed in the deed
along with appellant, Nganga, and Kaguma; appellant and appellee were not the only purported
co-tenants listed on the property beginning on December 23, 2014, when Mary Mbogo executed
the warranty deed transferring her interest in the property to appellee.
We will sustain a challenge to the legal sufficiency of the evidence if the record shows (1)
a complete absence of a vital fact; (2) rules of law or evidence bar the court from giving weight to
–8– the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no
more than a scintilla; (4) or the evidence establishes conclusively the opposite of the vital fact.
City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). We consider the evidence in the light
most favorable to the verdict, crediting favorable evidence if a reasonable fact-finder could, and
disregarding contrary evidence unless a reasonable fact-finder could not. Id. at 827. We do not
substitute our judgment for that of the trier of fact, so long as the evidence falls within a zone of
reasonable disagreement. Id. at 822.
In his second issue, appellant contends there is legally insufficient evidence to support the
jury’s finding––and the trial court’s final judgment––that appellee adversely possessed the
property against its rightful owner because a partnership purchased the property and appellee sued
only appellant, not the partnership.
Unlike standing, which is jurisdictional, a challenge to a party’s capacity to be sued can be
waived. Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996)
(Nootsie waived any complaint about appraisal district’s legal capacity because it failed to raise
the issue through a verified pleading in the trial court); Highland Credit Opportunities CDO, LP
v. UBS AG, 451 S.W.3d 508, 516 (Tex. App.—Dallas 2014, no pet.) (“Unlike jurisdiction, the
assertion of a lack of capacity is procedural, and can be waived.”). Although appellant filed three
verified denials challenging appellee’s standing and legal capacity to bring suit, he did not file a
verified denial that appellee sued the wrong party. Texas Rule of Civil Procedure 93 provides in
part that unless the truth of the matter appears of record, a pleading setting up the matter that a
defendant is not liable in the capacity in which he has been sued must be verified by affidavit, and
that a pleading asserting there is a defect of parties must be verified by affidavit. See TEX. R. CIV.
P. 93(2), (4). “A party who fails to follow this requirement waives the right to complain about the
matter on appeal.” Highland Credit, 451 S.W.3d at 516. Because appellant failed to bring such a
–9– verified denial, he waived the issue. See TEX. R. CIV. P. 93(2), (4); Nootsie, 925 S.W.2d at 662;
Highland Credit, 451 S.W.3d at 516.
Appellant’s third issue argues appellee had to, and did not, show that he adversely
possessed the property for twenty-five years. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.027.
Appellant, however, did not raise the twenty-five year adverse possession statute below, nor does
he support his contention that the statute applies in this case with appropriate citations to authorities
and to the record. See TEX. R. APP. P. 38.1(i) (brief “must contain a clear and concise argument
for the contentions made, with appropriate citations to authorities and to the record”). If a party
fails to advance a viable argument on appeal with citations to appropriate authorities and the
record, we are not required to comb through the record and the applicable law to determine if any
error occurred. See, e.g., Amir-Sharif v. Hawkins, 246 S.W.3d 267, 270 (Tex. App.—Dallas 2007,
pet. dism’d w.o.j.); Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886 (Tex.
App.––Houston [1st Dist.] 1995, no writ); Ayati-Ghaffari v. J.P. Morgan Chase Bank, No. 05–17–
00482–CV, 2018 WL 1602528, at *1 (Tex. App.––Dallas Apr. 3, 2018, no pet.) (mem. op.).
Accordingly, this argument has been waived.
In his fourth and fifth issues, appellant contends he and appellee were not the only
purported co-tenants listed on the property as of December 23, 2014, when Mary Mbogo executed
the warranty deed transferring her interest in the property to appellee; and that, as a result, appellee
had to, and did not, establish he adversely possessed the property against Mary Mbogo for the
requisite 10-year period.
As discussed elsewhere, the record shows that Mary Mbogo never claimed any ownership
interest in the property, and that she held title on appellee’s behalf because he was having tax
problems. Furthermore, Mary Mbogo’s act of executing a warranty deed to appellee after he had
adversely possessed the property for the requisite 10-year period was, as a matter of law,
–10– insufficient to defeat appellee’s fee simple title. See Santa Fe Energy Operating Partners, L.P. v.
Carillo, 948 S.W.2d 780, 786 (Tex. App.—San Antonio 1997, writ denied) (recognizing record
title holder’s quit claim deed executed after adverse possession claim matured could not defeat
adverse possessor’s title) (citing Auchterlonie v. McBride, 705 S.W.2d 183, 186 (Tex. App.—
Houston [14th Dist.] 1985, no writ)); see also Fuentes v. Garcia, 696 S.W.2d 482, 485 (Tex.
App.—San Antonio 1985, no writ) (“When the statutory period has run as here, title is full and
absolute in the claimant and cannot be lost by subsequent oral statements that the claimant never
intended to claim by limitations.”). We overrule appellant’s issues two, three, four, and five.
III. Factual sufficiency of the evidence
In his sixth issue, appellant argues the evidence is factually insufficient to support the jury’s
adverse possession finding. He contends there is insufficient evidence to support both the “open
and obvious” and “adverse and hostile” elements of appellee’s adverse possession claim.
When evaluating the factual sufficiency of the evidence to support a finding, we consider
all the evidence and will set aside the finding only if the evidence supporting the finding is so weak
or so against the overwhelming weight of the evidence that the finding is clearly wrong and unjust.
See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
Adverse possession is “an actual and visible appropriation of real property, commenced
and continued under a claim of right that is inconsistent with and is hostile to the claim of another
person” throughout the statutorily required period. TEX. CIV. PRAC. & REM. CODE ANN. §
16.021(1); Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990); Estrada v. Cheshire, 470 S.W.3d
109, 122 (Tex. App.––Houston [1st Dist.] 2015, pet. denied). Under Section 16.026 of the Civil
Practice and Remedies Code, “[a] person must bring suit not later than 10 years after the day the
cause of action accrues to recover real property held in peaceable and adverse possession by
another who cultivates, uses, or enjoys the property.” TEX. CIV. PRAC. REM. CODE ANN. §
–11– 16.026(a).
“The test for hostility is whether the acts performed by the claimant on the land and the use
made of the land were of such a nature and character as to reasonably notify the true owner of the
land that a hostile claim was being asserted to the property.” Bernal v. Chavez, 198 S.W.3d 15,
19 (Tex. App.—El Paso 2006, no pet.). A claimant needs to show he acted in a way that visibly
appropriated the disputed property in a manner that gave notice to any other person that he claimed
a right in the property. Perkins v. McGehee, 133 S.W.3d 287, 291–92 (Tex. App.––Fort Worth
2004, no pet.) (citing Parker v. McGinnes, 842 S.W.2d 357, 360 (Tex. App. ––Houston [1st Dist.]
1992, writ denied)).
“‘Hostile’ use does not require an intention to dispossess the rightful owner,” or even
knowledge there is a rightful owner. Tran v. Macha, 213 S.W.3d 913, 915 (Tex. 2006); Kazmir v.
Benavides, 288 S.W.3d 557, 564 (Tex. App.––Houston [14th Dist.] 2009, no pet.). “But there
must be an intention to claim the property as one’s own to the exclusion of all others.” Tran, 213
S.W.3d at 915; Kazmir, 288 S.W.3d at 564. The “[b]elief that one is the rightful owner and has
no competition for the ownership of the land is sufficient intention of a claim of right.” Kazmir,
288 S.W.3d at 564–65; see Tran, 213 S.W.3d at 915.
“A claimant shows exclusive intent when he or she makes use of the land as an ordinary
person would.” KB Texas Instruments, LLC v. Spiller, No. 01–16–00068–CV, 2017 WL 372164,
at *6 (Tex. App.––Houston 1st Dist.], no pet.) (mem. op.). “The character and situation of the
land, and the uses to which it is adapted, and may be and is actually put, must be considered in
determining whether an occupation is exclusive or not.” Richards v. Smith, 4 S.W. 571, 573 (Tex.
1887); Kazmir, 288 S.W.3d at 564–65. “When a person in possession of land is shown to have
used and enjoyed it as an owner of land usually does, the natural inference is that possession was
taken and held for such person as owner and that is, therefore, inconsistent with and hostile to the
–12– claim of another.” Kinder Morgan North Texas Pipeline, L.P. v. Justiss, 202 S.W.3d 427, 440
(Tex. App.––Texarkana 2006).
Beginning with the “open and obvious” element of appellee’s adverse possession claim,
the evidence shows that shortly after appellant quit the business, appellee formed a new automotive
repair business; changed the locks; painted the name of his new business over the old business’s
name; changed the employees’ uniforms to reflect the new business’s name; built an extension on
the back of the building. These changes were visible to the public. Appellant admitted at trial that
the foregoing changes were done without his agreement or consent, and that he visited the property
three or four times after appellee made these changes. We conclude the evidence in favor of the
jury’s finding for appellee on the “open and obvious” element of his adverse possession claim is
not so weak as to be clearly wrong and unjust. See, e.g., Baugh v. Capps, No. 10–09–00111–CV,
2010 WL 730369, at *3 (Tex. App.—Waco Mar. 3, 2010, no pet.) (mem. op.) (recognizing that
notice of adverse possession can be inferred, or there can be constructive notice) (citing Natural
Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 194 (Tex. 2003)); see also Cain, 709 S.W.2d at
176.
Regarding appellant’s factual sufficiency challenge to the jury’s “adverse and hostile”
finding in appellee’s favor, appellant argues there is no testimony that appellee acted to restrict
appellant’s entry onto the property, an assertion that is undermined by evidence (for example) that
appellee changed the locks after appellant’s departure from the business. Appellant also argues
that appellee’s possession of the property was not adverse and hostile, but rather that it was part
of a bargained-for exchange whereby appellee offered to pay the mortgage, taxes, and run the
business in return for appellant’s agreement not to re-let or sell the property.
Yet, even if one assumes appellee’s possession of the property started out permissively,
the evidence shows appellee satisfied the adverse and hostile elements of his adverse possession
–13– claim through his “open, notorious, exclusive, and inconsistent” use of the property. See Fish v.
Hodges, No. 03–10–00532–CV, 2012 WL 2979078, at *3 (Tex. App.—Austin July 12, 2012, pet.
denied) (mem. op.) (“[A] grantor who retains possession and use of the transferred land may
acquire that land through adverse possession if, in addition to being open, notorious, exclusive,
and inconsistent with the existence of title in others, the possession and use was of such a duration
that it can be inferred that the tenancy was repudiated prior to the running of the ten-year limitation
period.”). Additionally, appellant overlooks his testimony before the jury that he never had any
agreement with appellee pursuant to which appellant authorized appellee to close the business and
open and operate Hinga’s Automotive on the property, nor to change the business’s name.
Appellant also overlooks the testimony that appellant abruptly quit the business without any
discussions with appellee about the property’s future, and the testimony that anyone who left the
business in its first ten years of operation automatically forfeited his interest in the business and
the property.
Appellant next argues that appellee’s possession was not adverse and hostile because he
met with appellant on several occasions and advised appellant they needed to do something about
the property. But appellee testified that he contacted appellant about the property because
appellant “was crowding the title,” while appellee was paying all of the taxes and operating costs.
Appellee further testified that his reason for contacting appellant and offering him money to
remove his name from the deed was to avoid the cost of filing suit to remove the cloud on the title.
Appellee also testified that he reminded appellant about their ten-year agreement, pursuant to
which appellant forfeited any interest in the business and property when he departed the business.
Viewing the evidence under the appropriate standard, we conclude the evidence in favor
of the jury’s finding for appellee on the “adverse and hostile” element of his adverse possession
claim is not so weak as to be clearly wrong and unjust, and that there is factually sufficient evidence
–14– to support the jury’s finding that appellee peaceably and adversely possessed the property for a
period of at least ten years before June 3, 2015. We overrule appellant’s sixth issue.
IV. Exclusion of appellant’s proposed jury questions
Appellant’s issues seven, eight, nine, ten, eleven, twelve, and thirteen concern the trial
court’s failure to submit to the jury appellant’s proposed jury questions 1 through 7, which
appellant submitted to the court before the charge conference. Appellee responds that appellant
failed to preserve error, and we agree.
Before giving the case to the jury, the trial court held a jury charge conference at which
appellee raised no objections to the trial court’s proposed charge. Appellant made only two
objections, arguing the charge did not include a question for the jury to determine whether or not
the partnership owned the property, and that it should include a question for the jury to determine
whether a purchase money resulting trust would be appropriate. The relevant portion of the record
reads as follows:
THE COURT: Let’s go back on the record.
At this time the Court will entertain objections for the record to the proposed charge of the Court.
From the Plaintiffs?
[APPELLEE’S TRIAL COUNSEL]: No objection, Your Honor.
THE COURT: All right. Thank you.
You all may be seated.
From the Defendants?
[APPELLANT’S TRIAL COUNSEL]: Thank you. And now comes [appellant] with proposed and stated objections to the charge. We understand that the Court has refused to accept our proposed jury charges, and at this time we would ask that the Court to go ahead and sign off on the denial of our charges so that it can be uploaded into the system.
So I have a clean copy, if I may approach?
–15– THE COURT: Okay. Great. Thank you. And just for the record to be clear, there was something that was submitted after the Court prepared its final jury charge that was––that will be marked as untimely.
[APPELLANT’S TRIAL COUNSEL]: Yes, Your Honor. I understand that.
THE COURT: Okay. Please proceed.
[APPELLANT’S TRIAL COUNSEL] Okay. As we had stated, and I would re- urge this Court to consider submitting the issues of whether or not the partnership own [sic] the property in question here, which would be the real estate. And to make clear on the record, we’re not referring to business asset or the mechanic shop or the business being run as an auto repair.
And the reason that we ask the Court to consider that is that should it be determined that it was a jury issue, then having this jury go ahead and make that decision, this Court is still within its power to enter a judgment notwithstanding the verdict. And we would ask for it to reconsider the issues we brought forth, particularly, in light of the fact that we’ve asked for this Court to submit an issue on a resulting trust, money purchased interest, and this Court has denied us on that.
We believe the evidence shows that would support a resulting trust because the ownership of this property, as the testimony was received in this court, was by a partnership. There was no evidence contrary to that. And as such, if the partnership took this property, then a purchase money resulting trust would be appropriate under the circumstances when the monies used to pay for the property at the time it was sent for the title were monies purely paid by [appellant], which the evidence shows.
So those would be our objections, Your Honor. And we’re ready to proceed after this.
THE COURT: Great. Thank you.
Off the record.
“A party objecting to a charge must point out distinctly the objectionable matter and the
grounds of the objection.” TEX. R. CIV. P. 274. “Any complaint as to a question, definition, or
instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically
included in the objections.” Id. Additionally, to preserve error for appellate review, the rules
generally require the complaining party to (1) make a timely objection to the trial court that
‘state[s] the grounds for the ruling that the complaining party [seeks] from the trial court with
sufficient specificity to make the trial court aware of the complaint, unless the specific grounds
–16– were apparent from the context,’ and (2) obtain a ruling. Thota v. Young, 366 S.W.3d 678, 689
(Tex. 2012) (quoting TEX. R. CIV. P. 33.1). On appeal, “the procedural requirements for
determining whether a party has preserved error in the jury charge are explained by one basic test:
‘whether the party made the trial court aware of the complaint, timely and plainly, and obtained a
ruling.’” Id. (quoting State Dep’t of Highways v. Payne, 838 S.W.2d 235, 241 (Tex. 1992)). The
purpose of these requirements is to give the trial court an opportunity to correct charge errors by
requiring the objecting party to clearly designate the error and explain the grounds for its
complaint. See Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex. 2014).
In this case, the record shows the trial court did not rule on appellant’s objections, nor did
appellant request a ruling––stating only, “Great. Thank You.” And appellant did not specifically
object to the trial court’s failure to submit any of his proposed jury questions or instructions. As
a result, appellant did not preserve error regarding his proposed jury submissions. See TEX. R.
CIV. P. 274; Burbage, 447 S.W.3d at 256; Thota, 366 S.W.3d at 689. We overrule appellant’s
issues seven, eight, nine, ten, eleven, twelve, and thirteen.3
V. Granting appellee’s motion for partial summary judgment
Appellant’s issues fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty-
one, and twenty-two concern the trial court’s decision to grant the appellee’s motion for partial
summary judgment on appellant’s counterclaims for fraud, fraudulent inducement, statutory fraud,
breach of fiduciary duty, breach of contract, civil conspiracy, declaratory judgment, and the
affirmative defenses of fraud, estoppel, waiver, assumption of the risk, statute of frauds, unclean
hands, and illegality.
3 Notwithstanding appellant’s oral objections to the court’s omission from the charge of a purchase money resulting trust question or instructions for the alleged partnership, appellant did not, either before or during the charge conference, tender to the court a substantially correct purchase money resulting trust question or instructions for the jury to consider regarding the alleged partnership. Also, the court did not expressly rule on his oral objections, nor did he request a ruling. Hence, to the extent appellant is attempting to raise these matters on appeal, error has not been preserved. See TEX. R. CIV. P. 274; Burbage, 447 S.W.3d at 256; Thota, 366 S.W.3d at 689.
–17– We review a trial court’s grant of summary judgment de novo. Pinkus v. Hartford Cas.
Ins. Co., 487 S.W.3d 616, 621 (Tex. App.—Dallas 2015, pet. denied) (citing SeaBright Ins. Co. v.
Lopez, 465 S.W.3d 637, 641 (Tex. 2015)). The standards of review for traditional and no-evidence
summary judgments are well known. See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.
2009) (no-evidence motion for summary judgment); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690
S.W.2d 546, 548 (Tex. 1985) (traditional motion for summary judgment). Regarding a traditional
motion for summary judgment, the movant has the burden to prove that no genuine issue of
material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c);
SeaBright, 465 S.W.3d at 641; see also Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280,
282 (Tex. 1996)). We review a no-evidence summary judgment under the same legal sufficiency
standard used to review a directed verdict. TEX. R. CIV. P. 166a(i); Gish, 286 S.W.3d at 310. To
defeat a no-evidence summary judgment, the nonmovant is required to produce evidence that
raises a genuine issue of material fact on each challenged element of its claim. TEX. R. CIV. P.
166a(i); Gish, 286 S.W.3d at 310. “No-evidence summary judgment is improper when the
nonmovant’s evidence amounts to ‘more than a scintilla of probative evidence to raise a genuine
issue of material fact.’” Boerjan v. Rodriguez, 436 S.W.3d 307, 312 (Tex. 2014) (quoting Smith
v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009)).
Beginning with appellant’s fraud counterclaims and affirmative defenses––i.e., fraud,
fraudulent inducement, and statutory fraud––a common law fraud claim requires a material
misrepresentation, which was false, and that was either known to be false when made or was
asserted without knowledge of its truth, which was intended to be acted on, which was relied on,
and which caused injury. Zorilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 153 (Tex. 2015).
Fraudulent inducement is a distinct category of common law fraud that shares the same elements
but involves a promise of future performance made with no intention of performing it at the time
–18– it was made. Id. To establish a statutory fraud claim, a plaintiff must prove (1) a transaction
involving real estate or stock; (2) during the transaction, the other party made a false representation
of fact, made a false promise, or benefitted by not disclosing that a third party’s representation was
false; (3) the false representation or promise was made for the purpose of inducing the party to
enter into a contract; (4) the party relied on the false representation or promise by entering into the
contract; and (5) the reliance caused the party injury. Ginn v. NCI Bldg. Sys., 472 S.W.3d 802,
823 (Tex. App.—Houston [14th Dist.] 2015, no pet.); see also TEX. BUS. & COM. CODE ANN. §
27.01. A viable claim for statutory fraud must relate to “a transaction involving real estate or stock
in a corporation or joint stock company.” TEX. BUS. & COM. CODE ANN. § 27.01(a); Ginn, 472
S.W.3d at 823. Courts have strictly construed this requirement, concluding that for fraud in a
transaction to be actionable under section 27.01, the contract must “actually effect the conveyance”
of real estate or stock between the parties, and it “cannot merely be tangentially related or a means
for facilitating a conveyance” of real estate or stock. Ginn, 472 S.W.3d at 823.
Appellee argued in his no-evidence partial summary judgment motion that, for each of
appellant’s fraud claims, appellant had no evidence he reasonably relied on any material
misrepresentations made by appellee, nor was there evidence of any damages suffered as a result
of the alleged fraud. In his response, appellant identified the following four allegedly false
statements that he relied on to his detriment:
a. Mr. Mbogo represented that his interest in the Property needed to be placed in his sister, Mary Mbogo’s name because she was the owner of the then existing business Universal Motor Works.
b. During the initial discussions of entering into a partnership and the Partnership Agreement, Mr. Mbogo represented that he, through his sister, Mary Mbogo, would contribute $15,000.00 in working capital to the Partnership;
c. During the initial discussions of entering into a partnership and the Partnership Agreement, Mr. Mbogo also represented that auto-repair equipment worth $15,000.00 would be contributed to the Partnership; and
–19– d. Several years later, Mr. Mbogo represented that if Mr. Ahmed would let him continue operating an auto-repair business, Mr. Mbogo would pay the mortgage, taxes, and other expenses associated with the Property, while Mr. Ahmed would retain his interest in the Partnership and Property. See Exhibit A, Affidavit of Mohamed Ahmed. Furthermore, Mr. Mbogo did not reveal his tax problems to Mr. Ahmed until after Mr. Ahmed had made his offer to buy the Property.
In his summary judgment affidavit, however, appellant stated that shortly after agreeing to
do business with appellee, but before they consummated the transaction, appellee began changing
the structure of the deal and started revealing through his actions that his initial representations
were false:
Shortly after agreeing to do business together, Mbogo began changing the entire structure of the deal and started revealing through his actions that his initial representations were false. For starters, he falsely represented that his sister, Mary Mbogo, was the actual owner of the auto repair business located on the property. He did this despite the fact that Mbogo originally told me that Mbogo, himself, was the owner.
As a result of this change, Mbogo said his sister, Mary Mbogo, would be on the property deed with me. Mbogo also said two additional parties, Charles Kaguma (“Kaguma”) and Martin Nagana (“Nagana”) should be listed as partners since they both worked in the auto shop with Mbogo and business was so good that he needed their help to keep up with demand. Further, he said that keeping them on would ensure that I could pay off the note. He also advised me that they are very good mechanics, and we need them to make the business profitable long-term.
Appellant stated that he disliked these changes but he had already negotiated a purchase price and
terms with the seller of the property and was committed to buying it, thereby making it difficult to
back out. Additionally, the changes appellee “brought to light did not surface until the real estate
deal was near closing.” Appellant alleged that he “relied on all of [appellee’s] false representations
to my detriment when deciding to enter the agreement and to keep it going after learning of some
of the above issues.”
The summary judgment record shows that although appellee’s proposed changes and
actions were “brought to light” before the parties closed on the property, appellant nonetheless
purchased the property and entered into the business agreement. A party with actual knowledge
–20– of the falsity of a representation cannot establish the reliance element of a fraud claim. See Coastal
Corp. v. Atlantic Richfield Co., 852 S.W.2d 714, 719 (Tex. App.––Corpus Christi 1993, no writ)
(“A finding of fraud requires proof that a party believed a deceitful representation and, relying on
it, contracted or acted to its detriment.”); Koral Indus., Inc. v. Security–Connecticut Life Ins. Co.,
788 S.W.2d 136, 146 (Tex. App.––Dallas 1990, writ denied) (“[A]ctual knowledge is inconsistent
with the claim that the allegedly defrauded party has been deceived, and it negatives the essential
element of reliance upon the truth of the representations.”); see also Thrower v. Brownlee, 12
S.W.2d 184, 186–87 (Tex. Comm’n App. 1929, judgm’t adopted) (“Where false representations
or promises are made to induce another to act, and, before such other does act, he learns of the
falsity of such representations or promises, it cannot of course be said that he relied upon them
believing them to be true, for, knowing their falsity, he has not been deceived.”).
As for the fourth allegedly false statement identified by appellant, it was made “[s]everal
years later” and related to appellee’s continued operation of Universal Auto Repair after appellant
had quit the business. A false statement made after the parties entered into their contract could not
have induced the contract. See Van Marcontell v. Jacoby, 260 S.W.3d 686, 691 (Tex. App.––
Dallas 2008, no pet.) (“[I]f at the time the parties entered into a written contract there had been no
fraud or misrepresentation, the contract is binding on both parties and cannot be set aside for the
representations of anyone occurring afterward because such representations could not have
induced the contract.”) (citing, in part, Campbell v. Rushing, 141 S.W. 133, 134 (Tex. Civ. App.—
Fort Worth 1911, no writ)). Accordingly, we conclude the trial court properly granted no-evidence
summary judgment for appellee on appellant’s fraud counterclaims and affirmative defenses.4
Turning to appellant’s claim for breach of fiduciary duty, to prevail on such a cause of
4 Once we determine that the nonmovant failed to produce more than a scintilla of evidence under the no-evidence provisions of rule 166a(i), we need not determine whether the movant’s summary judgment proof satisfied the burden for traditional summary judgment under rules 166a(c) and (d). Gonzalez v. VATR Contr. LLC, 418 S.W.3d 777, 782 (Tex. App.––Dallas 2013, no pet.).
–21– action an injured party must prove (1) a fiduciary relationship existed between the plaintiff and the
defendant; (2) the defendant breached his fiduciary duty to the plaintiff; and (3) the defendant’s
breach resulted in injury to the plaintiff or benefit to the defendant. Heritage Gulf Coast Props. v.
Sandalwood Apts., Inc., 416 S.W.3d 642, 650 (Tex. App.—Houston [14th Dist.] 2013, no pet.);
Graham Mortg. Corp. v. Hall, 307 S.W.3d 472, 479 (Tex. App.—Dallas 2010, no pet.).
In both his no-evidence and traditional motions for partial summary judgment, appellee
argued, in part, that there was no fiduciary relationship between appellant and appellee. Appellant
responded by arguing appellee and appellant “were partners, or in the alternative, [appellee] was
Mary Mbogo’s agent and represented her interest in the partnership[,]” and that “a fiduciary
relationship existed between [appellee] and [appellant].” On appeal, appellant insists appellee’s
argument that no fiduciary duty existed is flawed because appellant’s “claim for breach of fiduciary
duty is premised on the existence of a partnership and not a corporation.”
According to the summary judgment record, however, the entity the parties formed
regarding the property was Universal Auto Repair, Inc., a corporation formed under the laws of
the State of Texas. Appellant completed and submitted to the Texas Secretary of State articles of
incorporation naming himself, appellant, Charles Kaguma, and Martin Nganga as the initial board
of directors of Universal Auto Repair, Inc. The four named directors of that corporation owed a
fiduciary duty to the corporation itself, not to each other. See Ritchie v. Rupe, 443 S.W.3d 856,
868 (Tex. 2014); Hoggett v. Brown, 971 S.W.2d 472, 488–89 (Tex. App.––Houston [14th Dist.]
1997, writ denied) (defendant had no duty to inform plaintiff of proposed merger prior to board
meeting because no fiduciary relationship existed between the parties, even though both were
directors and shareholders of the same company; a director’s fiduciary duty runs only to the
corporation, not to individual shareholders or to a majority of the shareholders); van Bavel v. Oasis
Design, Inc., No. 03–97–00434–CV, 1998 WL 546342, at *6 (Tex. App.––Austin Aug. 31, 1998,
–22– no pet.) (not designated for publication) (“While partners owe a fiduciary duty to each other,
directors and officers of a corporation owe a fiduciary duty to the corporation for the benefit of the
shareholders.”). Based on the record in this case, we conclude appellant failed to raise a genuine
issue of material fact and that he failed to produce more than a scintilla of evidence regarding the
existence of a fiduciary relationship. Thus, the trial court did not err when it granted appellee’s
traditional and no-evidence motions for partial summary judgment as to appellant’s claim for
breach of fiduciary duty.
Appellant also argues that we should reverse the trial court’s granting of summary
judgment on his breach of contract counterclaim. However, according to appellant’s live pleading
in this case, his third amended counterclaim, and as expressly recognized by the trial court’s order
granting partial summary judgment, appellant never asserted a breach of contract counterclaim.
Appellant is not entitled to reversal of the trial court’s order based on an unpleaded counterclaim.
As for appellant’s claim for conspiracy, appellant acknowledges that this counterclaim is
dependent on the survival of at least one of his pleaded tort counterclaims (i.e., fraud, fraudulent
inducement, statutory fraud, or breach of fiduciary duty). Appellant contends:
Appellee argues that Appellant’s claims for civil conspiracy must fail because there was no supporting underlying tort. C.R. at 400. But because this Court should and when it does reverse the Trial Court’s grant of summary judgment as to Appellant’s claims for fraud, fraudulent inducement, statutory fraud, or breach of fiduciary duty, as outlined above, then Appellee’s only argument, that there is no underlying tort to support civil conspiracy, fails and there is no basis to dismiss appellant’s claim for civil conspiracy. C.R. at 400, § F.
Appellant offers no other argument for why the trial court erred in granting summary judgment for
appellee based on appellant’s conspiracy counterclaim. Because we have already concluded
appellant is not entitled to reversal of the trial court’s summary judgment order based on his tort
counterclaims, and appellant fails to provide us with any alternative argument, analysis or
authority, we need not address this issue. See TEX. R. APP. P. 38.1(i) (brief “must contain a clear
–23– and concise argument for the contentions made, with appropriate citations to authorities and to the
record”).
Turning to appellant’s declaratory judgment counterclaim, in his declaratory judgment
counterclaim appellant sought judgment declaring (1) his interest in the property; (2) the property
was an asset of a partnership in which appellee has no interest; (3) appellant holds “fee simple title,
with all right of title, possession and ownership in the Property described as city block 513 of the
City of Dallas, Dallas County, Texas;” (4) appellee should be enjoined from pursuing any further
legal action against appellant in an attempt to obtain or possess title of the property. Appellee
moved for traditional summary judgment on the declaratory judgment counterclaim on the grounds
it is barred by the statute of frauds and settled Texas law requiring a counterclaim for declaratory
relief to seek some type of affirmative relief with greater implications than the original suit.
“A counterclaim for declaratory judgment is improper if it is nothing more than a mere
denial of the plaintiff’s claims and the counterclaim fails to have greater ramifications than the
original suit.” Sanchez v. AmeriCredit Fin. Servs., 308 S.W.3d 521, 524 (Tex. App.—Dallas 2010,
no writ) (citing BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 842 (Tex. 1990)). “To have
‘greater ramifications’ than the original suit, the counterclaim should seek some sort of affirmative
relief.” Id.
In this case, however, the request for relief in appellant’s counterclaim for declaratory
judgment does not have greater ramifications than appellee’s original suit and is not independent
of appellee’s claim. “The Declaratory Judgments Act is ‘not available to settle disputes already
pending before a court’” or an issue that is “already before the court as part of the plaintiff’s case.”
BHP Petroleum Co., 800 S.W.2d at 841 (quoting Heritage Life v. Heritage Grp. Holding, 751
S.W.2d 229, 235 (Tex. App.––Dallas 1988, writ denied) and citing John Chezik Buick v. Friendly
Chevrolet, 749 S.W.2d 591, 594 (Tex. App.—Dallas 1988, writ denied)). Therefore, the trial court
–24– could have found that appellant cannot prevail on his counterclaim for declaratory judgment
because it duplicated issues already pending before the court, i.e., the parties’ ownership interest
in the property, and that appellee was entitled to traditional summary judgment as to this claim.
See Heritage Life, 751 S.W.2d at 235 (“This counterclaim merely restates Seller’s defenses to
issues already raised under Buyer’s action for return of the earnest money.”).
As for appellant’s affirmative defenses of assumption of the risk, estoppel, waiver, statute
of frauds, unclean hands, and illegality, appellant argues that appellee’s reconsideration summary
judgment motion did not move for summary judgment on the affirmative defenses of estoppel,
waiver, statute of frauds, unclean hands, and illegality, as appellee had done in his original
summary judgment filing. The reconsideration summary judgment motion sought summary
judgment on only appellant’s fraud and assumption of the risk affirmative defenses. Thus, argues
appellant, we should reverse the trial court’s grant of summary judgment on appellant’s affirmative
defenses of estoppel, waiver, statute of frauds, unclean hands, and illegality, and remand for a new
trial on the merits.
In fact, however, as we noted previously, appellee specifically stated in the reconsideration
motion that he was reurging the arguments in its original motion and incorporating, as if set forth
in full, the briefing and attachments in the original motion. Appellant offers no other argument for
why the trial court erred in granting summary judgment on his affirmative defenses of estoppel,
waiver, statute of frauds, unclean hands, and illegality. To the extent appellant seeks to attack the
summary judgment as to those claims, he has, therefore, waived that argument due to inadequate
briefing. See TEX. R. APP. P. 38.1(i); Jackson v. U.S. Fid. and Guar. Co., 689 S.W.2d 408, 412
(Tex. 1985) (burden on appellant to show judgment of trial court rendered erroneously); Ryan
Construction Servs., LLC v. Robert Half International, Inc., 541 S.W.3d 294, 301 (Tex. App.—
Houston [14th Dist.] Nov. 16, 2017, no pet.) (construction companies failed to properly brief
–25– claims on appeal and to the extent they sought to attack the summary judgment entered against
them as to those claims, they waived their argument due to inadequate briefing); Blanks v. Liberty
Mut. Fire Ins. Co., 196 S.W.3d 451, 452 (Tex. App.—Dallas 2006, pet. denied) (bare assertions
of error, without argument or authority, present nothing for review). We reach the same conclusion
regarding the affirmative defense of assumption of the risk, which is also waived due to inadequate
briefing. See TEX. R. APP. P. 38.1(i). We overrule appellant’s issues fourteen, fifteen, sixteen,
seventeen, eighteen, nineteen, twenty, twenty-one, and twenty-two.
VI. Absence of a ruling on the record or a signed order
In his twenty-third and final issue, appellant contends the trial court erred in stating on the
record, prior to the charge conference, that it had already ruled “the organization was not a
partnership,” when there was no ruling on the record, no signed order in the clerk’s record, and the
partnership could have owned the Ross Avenue property. To the extent appellant is complaining
about the absence of a ruling on the record or a written order from the trial court regarding the
organization not being a partnership, there is no indication appellant lodged a relevant objection
in the trial court, so this argument was not preserved. See TEX. R. APP. P. 33.1(a). Furthermore,
we have already concluded appellant failed to preserve any argument that appellee had to prove
adverse possession against a partnership, and we need not address the subject again. We overrule
appellant’s final issue.
We affirm the trial court’s judgment.
/Lana Myers/ LANA MYERS JUSTICE
170457F.P05
–26– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MOHAMED AHMED, Appellant On Appeal from the 101st Judicial District Court, Dallas County, Texas No. 05-17-00457-CV V. Trial Court Cause No. DC-15-06400. Opinion delivered by Justice Myers. HINGA MBOGO, Appellee Justices Lang-Miers and Boatright participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee HINGA MBOGO recover his costs of this appeal from appellant MOHAMED AHMED.
Judgment entered this 30th day of July, 2018.
–27–