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Yazdchi v. BBVA Compass Bank

Court of Appeals of Texas, First District

April 25, 2017

ALI YAZDCHI, Appellant
v.
BBVA COMPASS BANK, Appellee

         On Appeal from the 152nd District Court Harris County, Texas Trial Court Case No. 2015-05657.

          Panel consists of Justices Keyes, Bland, and Huddle.

          MEMORANDUM OPINION

          Rebeca Huddle Justice

         Ali Yazdchi appeals a summary judgment in favor of BBVA Compass Bank on Yazdchi's various claims against BBVA related to its alleged breach of the parties' deposit agreement. In six issues, Yazdchi argues that (1) he raised fact issues precluding summary judgment, (2) the trial court erred by awarding BBVA attorney's fees, (3) summary judgment was improperly granted on Yazdchi's later-pleaded fraud claim, (4) the summary judgment and an order declaring him a vexatious litigant are invalid because the trial judge has a financial interest in BBVA, and (5) alternatively, summary judgment was improper because section 4.406 of the Texas Business and Commerce Code does not apply to bar his suit. We affirm.

         Background

         Yazdchi sued BBVA, alleging that BBVA breached the parties' deposit agreement by failing to provide him with his account statements, failing to change his address as requested, and allowing unauthorized transfers from his account. Yazdchi alleged claims for breach of contract, money had and received, conversion, and claims under the Deceptive Trade Practices Act, and sought damages and exemplary damages. BBVA responded and counterclaimed for attorney's fees based upon the prevailing party provision in the deposit agreement, which stated:

Attorneys' Fees. In any action between you and us in court, the prevailing party shall be entitled to recover its reasonable attorneys' fees expended in the prosecution or defense of the court action from the other party.

         BBVA moved for summary judgment on all of Yazdchi's claims and its own claim for attorney's fees. BBVA also moved to have Yazdchi declared a vexatious litigant. See, e.g., Yazdchi v. Jones, 499 S.W.3d 564, 570-71 (Tex. App.-Houston [1st Dist.] 2016, pet. denied) (detailing Yazdchi's litigation history).

         After BBVA moved for summary judgment, Yazdchi filed an amended petition which added a fraud claim. Yazdchi also filed a response to BBVA's summary-judgment motion, but he did not timely serve it on BBVA. BBVA moved to strike the response, and the trial court ruled that it would not consider Yazdchi's response because it was not timely served. The trial court granted summary judgment in BBVA's favor, awarded BBVA attorney's fees, and declared Yazdchi a vexatious litigant. Yazdchi appeals.

         Summary Judgment

         On appeal, Yazdchi attacks the summary judgment on his breach of contract and fraud claims but expressly declines to attack the summary judgment on his other claims. In his first, third, and fifth issues, Yazdchi contends summary judgment as to his breach of contract and fraud claims was improper because he raised fact issues regarding his claims and because he amended his petition to add the fraud claim after BBVA filed its summary-judgment motion. In his fourth issue, Yazdchi contends that the trial court erred by granting BBVA summary judgment on its attorney's fees request.

         A. Standard of Review

         We review a trial court's summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary judgment without specifying the grounds for granting the motion, we must uphold the trial court's judgment if any of the grounds are meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.-Houston [1st Dist.] 2005, pet. denied). When a party has filed both a traditional and no-evidence summary-judgment motion, we typically first review the propriety of the summary judgment under the no-evidence standard. See Tex. R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the no-evidence summary judgment was properly granted, we need not reach arguments under the traditional motion for summary judgment. Ford Motor Co., 135 S.W.3d at 600. When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

         To prevail on a no-evidence motion for summary judgment, the movant must allege that there is no evidence to support an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523-24 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the nonmovant to present evidence raising a genuine issue of material fact as to each of the elements specified in the motion. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Hahn, 321 S.W.3d at 524.

         In a traditional summary-judgment motion, the movant has the burden to show that no genuine issue of material fact exists and that the trial court should grant judgment as a matter of law. Tex.R.Civ.P. 166a(c); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant moving for traditional summary judgment must conclusively negate at least one essential element of each of the plaintiff's causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

         B. Breach of Contract

         Yazdchi argues that summary judgment on his breach-of-contract claim was improper because BBVA breached the parties' deposit agreement by failing to provide him with his account statements, failing to change his address as requested, and allowing unauthorized transfers from his account. BBVA responds that summary judgment was proper because Yazdchi failed to produce any evidence that it breached the deposit agreement in response to its no-evidence motion.

         1.Applicable ...


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