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Masa Custom Homes, LLC v. Shahin

Court of Appeals of Texas, Fifth District, Dallas

April 2, 2018

MASA CUSTOM HOMES, LLC, MOHAMED SHAMALI AND NISHAD KOLOTHODY, Appellants
v.
ISLAM SHAHIN, M.D., Appellee

          On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-13-08959

          Before Justices Francis, Evans, and Boatright.

          OPINION

          MOLLY FRANCIS JUSTICE

         In this appeal following a bench trial, Masa Custom Homes, LLC, Mohamed Shamali, and Nishad Kolothody challenge the judgment rendered against them for fraud, negligent misrepresentation, and violations of the Texas Deceptive Trade Practices Act. On our own motion, we requested the parties submit additional briefing on the issue of this Court's jurisdiction. After reviewing the record and applicable law, we conclude the trial court's judgment below is void and we have no jurisdiction to consider the merits of this appeal. Accordingly, we set aside the judgment, remand the cause to the trial court for further proceedings, and dismiss the appeal.

         Islam Shahin, M.D. filed this suit in August 2013 asserting claims against appellants based on their alleged failure to properly construct a residential home. Masa filed counterclaims for breach of contract, quantum meruit, and unjust enrichment. In August 2015, the case was tried to the court without a jury with the Honorable Phyllis Lister Brown presiding.

         At the close of Shahin's case-in-chief, appellants moved for a directed verdict on the liability of the individual defendants, Shamali and Kolothody. Judge Brown orally denied the motion as to Shamali, but granted it as to Kolothody. Appellants then called Kolothody as a witness in their case-in-chief. After Kolothody testified, Shahin requested the court reconsider its dismissal of the claims against him. Judge Brown did not rule on the motion at that time, heard the remainder of the evidence, and concluded the bench trial.

         One month later, counsel for the parties received an email from Judge Brown's court coordinator. The email informed them the judge had made the following rulings:

TBC - Plaintiff verdict, Finding on Deft liability on Pltf COA - Breach of Contract - Yes; DTPA-Yes; Fraud/Negligent Misrepresentation - Yes; Texas Construct Trust Fund - No Damages - BOC - Cost to complete paid by Pltf after MASA - $71, 799.47; Cost of Outstanding Repairs - $51, 899.32; Moving/Storage - $2, 453.13; Delay - $50, 891.95; Atty fees - $36, 097.50; Less Credit contract balance - ($15, 951.22). DTPA Damages - Loss of Bargain - $0; Out of Pocket - $123, 698.79; Fraud/Negligent Misrepresentation of [sic] Damages - Loss of Bargain -$0; Out of Pocket $123, 698.79. Pltf must choose between Loss of Bargain or Out of Pocket. Findings on Pltf Liability on Deft COA - Br[e]ach of Contract - No; Quantum Meruit - No.

         In response to the email, Shahin submitted a proposed final judgment which included an award of $247, 397.58 in enhanced damages for knowing or intentional violations of the DTPA. The proposed judgment named all three appellants jointly and severally liable and included an award of attorney's fees in the amount of $38, 500 - about $2, 500 more than the amount stated in the email.

         Appellants filed objections to the proposed judgment asserting, among other things, that the award of enhanced damages and the assessment of liability against the individual defendants was improper because neither was a part of the rulings reflected in the email. Appellants noted Judge Brown granted a judgment in favor of Kolothody at trial. Appellants requested the court sign their version of the final judgment which removed the individual defendants and the enhanced damage award, and reduced the award of attorney's fees to the amount stated in the email. Shahin filed a response setting out at length the evidence presented at trial supporting both the enhanced damage award and the liability of the individual defendants.

         On March 21, 2016, a hearing was conducted on the parties' cross-motions for entry of judgment. During the hearing, Judge Brown indicated her findings as reflected in the email were against both Masa and Shamali, but not against Kolothody. Counsel for Shahin reminded the court that his motion for reconsideration of Kolothody's dismissal was still pending and argued Kolothody's testimony at trial supported his individual liability. Judge Brown agreed to review the record to determine if the motion for reconsideration remained pending and, if so, to issue a ruling. She further agreed to examine the issues of the attorney's fees and enhanced damages.

         Two months after the hearing, Judge Brown passed away. Six days later, Judge Eric Moyé, sitting for the 162nd Judicial District Court, signed the final judgment. The judgment he signed was the one submitted by Shahin, which differed from the rulings outlined in the email and included the imposition of liability on both individual defendants, treble damages, and an award of $38, 500 in attorney's fees. Appellants filed a request for findings of fact and conclusions of law as well as a motion to modify, correct, or reform the final judgment. Appellants argued the judgment signed by Judge Moyé was inconsistent with Judge Brown's rulings. Shahin filed proposed findings and conclusions on July 1, 2016 and, on the same day, Judge Moyé signed findings and conclusions largely identical to those proposed by Shahin.

         Appellants' motion to modify the judgment was heard by a third judge on August 12. The motion was denied, and this appeal followed. After oral argument, we ordered the parties to file supplemental briefing on the issues of Judge Moyé's authority to render judgment and our jurisdiction over this appeal.

         Because Judge Brown did not orally pronounce judgment in open court or file a memorandum of judgment with the clerk, she did not render judgment in this case before she died. See W.C. Banks, Inc. v. Team, Inc., 783 S.W.2d 783, 785 (Tex. App.-Houston [1st Dist.] 1990, no writ); see also Genesis Producing Co., L.P. v. Smith Big Oil Corp., 454 S.W.3d 655, 659-60 (Tex. App.-Houston [14th Dist.] 2014, no pet.). The absence of a final judgment by Judge Brown is further reflected by the parties' motions for entry of judgment and Judge Brown's agreement to take the matters raised by the motions under advisement before making a final ruling. Because Judge Brown did not ...


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