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El-Khalidi v. Arabian American Development Co.

Court of Appeals of Texas, Ninth District, Beaumont

November 9, 2017

HATEM EL-KHALIDI, Appellant
v.
ARABIAN AMERICAN DEVELOPMENT COMPANY, Appellee

          Submitted on September 11, 2017

         On Appeal from the 88th District Court Hardin County, Texas Trial Cause No. 55018

          Before McKeithen, C.J., Kreger and Horton, JJ.

          MEMORANDUM OPINION

          HOLLIS HORTON, JUSTICE.

         Hatem El-Khalidi appeals the dismissal of his suit against Arabian American Development Company (AADC).[1] In five issues, El-Khalidi contends that the trial court erred (1) by denying his request seeking the trial court's intervention to either delay his deposition to a date he could travel or to allow his deposition to be taken by remote electronic means; (2) by failing to test lesser sanctions before dismissing his suit; (3) by dismissing his suit for want of prosecution without first notifying him that his case could be dismissed and without conducting a hearing to allow him to be heard regarding the explanation he was entitled to offer to justify the delays that occurred in the prosecution of his suit; (4) by entering a judgment when insufficient evidence supports the express and implied findings required to support a decision to dismiss his case; and (5) by ruling on AADC's motion for sanctions before September 5, 2016, the date that AADC notified El-Khalidi that its motion would be submitted to the court to be decided without a hearing.

         Background

         El-Khalidi filed cause number 55018, the suit that is the subject of this appeal, in 2014, after having already filed an earlier suit involving the same subject matter. The trial court dismissed El-Khalidi's first case, cause number 52483, which he filed in 2011, for lack of prosecution. El-Khalidi appealed that order of dismissal, and we affirmed the order. See El-Khalidi v. Arabian Am. Dev. Co., No. 09-13-00394-CV, 2014 WL 2152101, at *3 (Tex. App.-Beaumont May 22, 2014, pet. denied) (mem. op).

         El-Khalidi's 2014 suit was also dismissed for lack of prosecution. Although the claims that were dismissed concerned El-Khalidi's claims alleging that AADC had breached an agreement that it reached with him to get him to retire, his original petition included claims for defamation. El-Khalidi had nonsuited his tort claims against AADC in April 2015. In June 2015, he moved for summary judgment on his breach-of-contract claims, which alleged that AADC had failed to pay him the benefits it agreed to pay him to get him to retire. El-Khalidi's motion was accompanied by two affidavits, one that he signed and one signed by a certified public accountant. In El-Khalidi's affidavit, El-Khalidi provided the trial court with the terms of the agreement that he claimed he reached with AADC in contemplation of his agreement to retire. The accountant's affidavit contains calculations showing the money that El-Khalidi claimed AADC owed him under the terms of the agreement he reached with AADC just before he retired.

         After El-Khalidi moved for summary judgment, and to respond to the claims that El-Khalidi had made in his affidavit, AADC sought to secure El-Khalidi's deposition. By July 2015, having failed to secure El-Khalidi's agreement to give a deposition in Texas, AADC filed a combined motion seeking an order compelling El-Khalidi to give a deposition in Texas, to prevent El-Khalidi from proceeding on his own discovery requests to AADC until after submitting to a deposition, and motion for sanctions. AADC's combined motion relied, in part, on the efforts that it asserted it had made to obtain El-Khalidi's deposition in the earlier-filed case, cause number 52483, evidence showing that the trial court had ordered El-Khalidi to be deposed in that cause, and the fact that the court had dismissed El-Khalidi's first case for want of prosecution in 2013. Id. at *2. Following a hearing on AADC's combined motion, the trial court ordered that El-Khalidi appear for a deposition at the offices of AADC's attorneys, which are in Beaumont, on January 26 and 27, 2016.

         On January 20, 2016, El-Khalidi moved to reset the January 2016 court-ordered deposition. In his motion, he asserted that he had advised counsel that he had been unavoidably detained in Saudi Arabia, that he had not been able to conclude his affairs in Saudi Arabia, and that he was in the process of preparing to move to the United States. El-Khalidi's motion also asserts he was unable to travel due to "his health issues, advanced age, the problems with his residency visa in Saudi Arabia, and the inability to access his funds due to the freezing of his bank accounts[.]"

         The record does not show that El-Khalidi requested a hearing on his motion to postpone his deposition scheduled on January 26. Moreover, the trial court's order compelling El-Khalidi to submit to the deposition in Beaumont states that the deposition was not subject to being changed absent the mutual agreement of the parties or absent the court decision to postpone the deposition, which had be to obtained before the date the deposition was scheduled to occur. When El-Khalidi failed to appear for his January 2016 deposition, AADC filed a motion for sanctions and motion to dismiss his case. In its motion, AADC noted that the language in the court's order prevented El-Khalidi from unilaterally changing the date the court had ordered El-Khalidi to submit to a deposition in Beaumont. In response to these motions, El-Khalidi filed a motion requesting that the trial court allow his deposition to "be taken according to a new schedule and by remote live broadcast, " arguing that due to his age and worsening heart condition, he could not "safely travel to the United States at this time."

         In response to El-Khalidi's offer to make himself available for a deposition by "remote live broadcast, " AADC argued that El-Khalidi's request should be denied because his problems were of "his own making." According to AADC, El-Khalidi had persistently failed to comply with efforts that it had made over a period spanning five years to obtain his deposition. AADC also questioned El-Khalidi's claim that he was too ill to travel, noting that he had recently traveled to Jordan even while claiming he was too ill to travel. AADC noted that El-Khalidi's response to its motion failed to explain why traveling to the United States would place him at any greater risk than he had faced when he chose to travel to Jordan.

         On August 4, 2016, AADC filed a notice of submission, indicating that its combined motions would be decided without a hearing on September 5, 2016. On September 1, 2016, the trial court granted AADC's motion, dismissing El-Khalidi's cause of action with prejudice. Subsequently, El-Khalidi filed a motion to reconsider. In his motion to reconsider, El-Khalidi complained that he was not notified that AADC's motions would be decided prior to September 5, 2016.

         Approximately five weeks after the trial court dismissed cause number 55018, it provided the parties with written findings of fact. The findings state:

1. Plaintiff Hatem El Khalidi originally filed suit against AADC on March 21, 2011 in Dallas County, Texas, and agreed to transfer venue to this Court.
2. On June 18, 2012, this Court first ordered El Khalidi to appear for deposition on August 7, 2012. Although the Order stated that the date could be changed "only upon good cause shown to this Court in advance of these dates, or upon mutual agreement" of the parties, El Khalidi did not appear for deposition.
3. On September 11, 2012, Defendant filed a Motion for Sanctions, Motion to Compel, Special Exceptions, and Motion to Strike Portions of Plaintiff's Pleadings as Frivolous.
4. On November 1, 2012, this Court conducted a conference in chambers and ordered El Khalidi to appear for deposition by January 31, 2013. El Khalidi again failed to appear for deposition.
5. On April 29, 2013, Defendant filed a Second Motion for Sanctions, Motion to Compel, Special Exceptions and Motion to Strike Portions of Plaintiff's Pleadings as Frivolous, and Motion to Dismiss for Want of Prosecution.
6. On July 24, 2013, the Court entered an Order granting Defendant's Motion to Dismiss for Want of Prosecution.
7. The Ninth Court of Appeals affirmed the dismissal order on May 22, 2014, and the Texas Supreme Court denied El Khalidi's Petition for Review.
8. During the pendency of the appeal, El Khalidi filed the same action against AADC in the 365th Judicial Court of Hardin County, Texas on May 1, 2014. On Defendant's motion, the 365th Judicial Court transferred the case back to this Court.
9. After repeated attempts to obtain El Khalidi's deposition, Defendant filed a Motion to Compel and Motion for Sanctions on July 31, 2015.
10.On November 2, 2015, the Court entered an Order compelling El Khalidi to appear for deposition on January 26 and 27, 201[6]. The Court's Order states, "these dates may be changed only upon good cause shown to this court in advance of these dates, or upon mutual agreement." El Khalidi again failed to appear for deposition.
11. On February 4, 2016, Defendant filed a Second Motion for Sanctions and Motion to Dismiss.
12. On April 13, 2016 the Court entered an Order compelling El Khalidi to appear for deposition in Hardin County (or an alternative location agreed upon by the parties) on or before August 1, 2016. El Khalidi again failed to appear as ordered.
13. El Khalidi is a United States citizen.
14. E1 Khalidi has traveled outside of Saudi Arabia in recent months for other purposes (such as to visit his sister in Jordan), indicating an ability to ...

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