Wally Yammine v. David Paul Healy, HDH Financial, LLC, DPH Capital, LLC, and HY Capital, LLC

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-20-00022-CV

WALLY YAMMINE, APPELLANT

V.

DAVID PAUL HEALY, HDH FINANCIAL, LLC, DPH CAPITAL, LLC, AND HY CAPITAL, LLC, APPELLEES

On Appeal from the 348th District Court Tarrant County, Texas Trial Court No. 348-279302-15, Honorable Mike Wallach, Presiding

February 5, 2021

MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellant Wally Yammine appealed from the trial court’s final judgment. Through

the latter, the court 1) awarded David Paul Healy the balance due (plus interest) on two

unpaid promissory notes executed in his favor by Yammine and ordered the foreclosure

upon two airplanes securing the notes, 2) declared that Yammine is not a member in HY

Capital, L.L.C., and that Healy is the only member of same, and 3) denied Yammine

recovery upon his claims against Healy, HDH Financial LLC, DPH Capital LLC, and HY

Capital LLC. Yammine argues before us that the trial court improperly 1) awarded Healy a double recovery, 2) declared that he was not a member of HY Capital, and 3)

adjudicated his allegation of breached fiduciary duty. We affirm.1

Double Recovery

We initially address the contention regarding a purported double recovery. This

allegedly occurred when the trial court 1) ordered that Healy recover from Yammine the

amount of $67,479.91 upon promissory note 6532R and $61,835.62 upon note 5212J

and 2) “foreclosed” upon the collateral (i.e., two airplanes) securing each obligation.

Permitting Healy to recover the aforementioned sums as well as foreclosing upon the

security interests constituted a double recovery, in Yammine’s view. We overrule the

issue.

First, it was not urged below. Thus, it was waived due to non-preservation. THF

Hous. Mgmt. Corp. v. Gideon, No. 07-19-00343-CV, 2021 Tex. App. LEXIS 57, at *14–

15 (Tex. App.—Amarillo Jan. 6, 2021, no pet. h.) (mem. op.) (stating that preserving a

complaint for review requires a party to present it to the trial court by a timely request,

objection, or motion stating the specific grounds supporting the desired ruling, if not

apparent from the context of the request, objection, or motion, and if failing to do so, the

error is waived).

Second, the trial court worded the pertinent part of its judgment as follows: “. . .

Healy’s security interests in the airplanes are foreclosed, and the airplane[s] shall be sold

at public auction . . . in satisfaction of the notes and security interests therein, or by private

sale pursuant to the Security Agreements.” This language specifies that the airplanes will

1 Because this appeal was transferred from the Second Court of Appeals, we are obligated to apply its precedent when available in the event of a conflict between the precedents of that court and this Court. See TEX. R. APP. P. 41.3.

2 be sold “in satisfaction of the notes and security interests.” In other words, it provides

that the proceeds from the sale be applied against the indebtedness created by and

outstanding under the promissory notes. It does not permit Healy to recover the specified

sums and also keep the collateral. Indeed, statute provides that any surplus arising from

the sale of the collateral be paid to the debtor, i.e., Yammine. See TEX. BUS. & COM. CODE

ANN. § 9.615(d) (West 2011) (stating that “[i]f the security interest under which a

disposition is made secures payment or performance of an obligation, after making the

payments and applications required by Subsection (a) and permitted by Subsection (c)

. . . the secured party shall account to and pay a debtor for any surplus”). Simply put,

there was and is no double recovery ordered by the trial court.

Declaration as Sole Member

Next, we address the contention that the trial court erred in declaring Healy to be

the sole member of HY Capital. The trial court so concluded after expressly finding that

“Yammine relinquished his status as a Member of the Company.” Yammine believed this

improper since statute provides that a “member of a limited liability company may not

withdraw or be expelled from the company.” TEX. BUS. ORGS. CODE ANN. § 101.107 West

2020). Yet, Yammine did not direct us to that portion of the appellate record illustrating

that the contention or ground was urged below. Nor did our own review of the record

illustrate that the specific ground was presented to the trial court. We simply found an

instance where his counsel postulated, during closing argument, that “there’s absolutely

no evidence before this Court that Mr. Yammine gave up voluntarily, waived, or did

whatever to lose his interest in HY Capital, LLC”; that passage said nothing of § 101.107

or its content.

3 The grounds underlying purported error urged on appeal must comport with those

urged at trial; should they fail to, then the former are not preserved for review. See In re

D.E.H., 301 S.W.3d 825, 829 (Tex. App.—Fort Worth 2009, pet. ref’d) (concluding that

because E. L.’s appellate argument did not comport with the grounds asserted in her

amended motion for new trial or the testimony at the hearing on her motion for new trial,

she failed to preserve her complaint for appellate review). That is the situation here, and

we overrule Yammine’s second issue.

Breached Fiduciary Duty

Finally, Yammine argued that the trial court erred in denying his claim of breached

fiduciary duty levied against Healy. The latter purportedly owed the former such duties

because both were members of HY Capital. And as a member of the entity, Yammine

allegedly suffered harm when Healy “took out of the company” assets and funds without

sharing same with Yammine. As can be seen, the argument is predicated on Yammine

being a member of HY Capital. Yet, the trial court found that he had “relinquished” that

membership. The sole ground urged to overcome that finding was not preserved for

review, as mentioned earlier. Consequently, we overrule the issue.

The trial court’s judgment is affirmed.

Per Curiam