Court of Appeals of Texas, Fifth District, Dallas
MASA CUSTOM HOMES, LLC, MOHAMED SHAMALI AND NISHAD KOLOTHODY, Appellants
ISLAM SHAHIN, M.D., Appellee
Appeal from the 162nd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-13-08959
Justices Francis, Evans, and Boatright.
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
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.
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.
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.
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.
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.
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.
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
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.
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 ...