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Yazdani-Beioky v. Sharifan

Court of Appeals of Texas, Fourteenth District

May 3, 2018

SHABAHRAM YAZDANI-BEIOKY, Appellant/Cross-Appellee
v.
ABDEE SHARIFAN, Appellee/Cross-Appellant

          On Appeal from the 333rd District Court Harris County, Texas Trial Court Cause No. 2009-71319

          Panel consists of Justices Christopher, Brown, and Wise.

          OPINION

          Marc W. Brown Justice

         This appeal and cross-appeal arise from a partnership and an August 2008 oral agreement for appellee/cross-appellant Abdee Sharifan to sell his forty-percent limited-partnership interest in Metro Hospitality Partners, Ltd. (MHP), to appellant/cross-appellee Shabahram Yazdani-Beioky (Yazdani) for $12.5 million. Additionally, Yazdani sought a declaration that either Sharifan forfeited his interest or had a reduced interest because Sharifan missed an August 31, 2009 capital call.

          The trial court conducted a bench trial in two parts, by agreement of the parties. The trial court found that Yazdani did not prove forfeiture or reduced interest. The trial court found that Sharifan fully tendered his partnership share in August 2008 pursuant to the oral agreement and that Yazdani breached by not paying Sharifan any of the agreed $12.5 million. The court also found that because Sharifan failed to properly account for using excess partnership funds related to purchasing trips to China, his affirmative relief was subject to an offset of $135, 000. The trial court awarded Sharifan the sum of $12, 365, 000, as well as just under $1.5 million in attorney's fees for trial, plus conditional appellate attorney's fees.

         Yazdani brings eight issues on appeal; Sharifan brings two cross-issues and two conditional issues. In addition, Sharifan filed a motion to dismiss Yazdani's appeal. Yazdani filed objections to and moved to strike the declarations attached to Sharifan's motion. We carried these motions with the case.

         We deny the motions, overrule the issues and cross-issues, and affirm.

         I. Background

         A. The partnership

         In September 2005, Metro Hospitality Management, LLC (MHM), Yazdani (sometimes referred to as "Bob"), and Sharifan entered into a written partnership agreement to create MHP. Under the partnership agreement, MHM was the general partner, which owned a 0.1% interest; Yazdani was a limited partner with a 59.9% interest; and Sharifan was a limited partner with a 40.0% interest. Yazdani owned 100% interest in and was the sole member of MHM. MHP owned and operated the Crowne Plaza Hotel near NRG Park facilities and the Medical Center, as well as a nearby parking lot.

         The limited partners had various disagreements relating to the extensive renovations required for the former Astroworld Hotel to obtain the "Crowne Plaza" brand. They also had disagreements relating to the treatment of cash generated by parking for events such as the Houston Rodeo. "HPD was called in" for at least one of Yazdani and Sharifan's arguments. During the summer of 2008, the partnership relationship of Yazdani and Sharifan was "creating a terrible mess for" and "affecting operations at the hotel."

         B. The buyout negotiations

         Hotel general manager Sayed Hassan approached Yazdani to see whether he would be willing to buy out Sharifan's share of the partnership. Yazdani indicated "that was probably the right thing to do" and asked Hassan to approach Sharifan to see if he was willing to sell and to find out at what price. Sharifan told Hassan he would sell his share for $15 million. Yazdani countered, though Hassan, with $12 million. Hassan stated that Sharifan initially was not interested, but Hassan proposed and Sharifan said "yes" to $12.5 million. Hassan went back to Yazdani, who "agreed on" the "final number" of $12.5 million "cash" for "all of Mr. Sharifan's interest." "There were no other terms, " only "the number." Sharifan went to meet with Yazdani in his office and "shook hands" with him on the deal. Yazdani told Sharifan he was "getting a good return" that was "fair." Yazdani told Sharifan, "Okay. 12-and-a-half, go see [attorney] Mike Little."[1]

         Sharifan went to see Little. Little knew that Yazdani was going to buy out Sharifan's partnership interest for $12.5 million cash. When Sharifan mentioned the unsettled parking lot cash, Little told Sharifan that he should "take [his] money and go." Little told Sharifan to come back in a couple more days to sign the paperwork to transfer his interest. On August 13, 2008, however, Little sent Sharifan an email that stated: "Bob called me this morning and said that he would pay $7, 500, 000."

         Sharifan obtained an attorney, Joe Slovacek. Slovacek entered into discussions with Yazdani's attorneys at then-Fulbright & Jaworski regarding Yazdani's "payment promise of $12, 500, 000" for Sharifan's partnership interest. Slovacek stated that the August 2008 oral agreement involved "cash for transfer of the partnership interest" without any contingencies-"These folks wanted a divorce. [$12.5 million] seemed to be a fair number, according to my client." Yazdani's Fulbright attorneys disputed that Yazdani had made any promise and recommended the parties engage in negotiations to resolve the dispute. In December 2008, Yazdani's attorneys made a written offer of $5.75 million, which Sharifan, though Slovacek, rejected. In 2009, Yazdani approached his and Sharifan's mutual acquaintance Hossein Farshchi and asked if Farshchi would broker a deal with Sharifan. The various offers and counteroffers were approximately $8 million, $6.8 million, and $6.5 million. According to Farshchi, Yazdani said Sharifan should have taken Yazdani's earlier offer of $12 million.

         At trial, Yazdani denied ever having made any offer to Sharifan to purchase his partnership interest at any price. Not only did Yazdani deny the interactions relating to the August 2008 deal, but also he testified he had no memory at all of negotiating with Sharifan later about buying out his interest, either through Little or Yazdani's Fulbright attorneys or though Farshchi.

         C. The capital calls

         Pursuant to section 4.3(A) of the partnership agreement, "Additional Contributions, " the general partner had the right to make a capital call of the partners for additional capital contributions. Yazdani first requested a capital contribution in August 2008 but revoked it in October 2008. Additional requests for capital were issued in June and August 2009, and Sharifan contributed his share of these capital calls. Sharifan did not contribute to an additional formal capital call issued on August 31, 2009. Yazdani contributed Sharifan's proportionate share of this capital call. Yazdani elected to treat the additional contribution as additional capital of the partnership under section 4.4(A) of the partnership agreement, "Failure to Make Capital Contributions."

         D. The bench trial

         On November 3, 2009, MHM and Yazdani filed suit against Sharifan. MHP was later added as a plaintiff. Yazdani[2] sought a declaratory judgment that Sharifan has no interest in the partnership or in the alternative that the trial court determine Sharifan's current interest under the partnership agreement.[3] Sharifan answered and counterclaimed that Yazdani breached their August 2008 oral agreement. Also, on December 16, 2009, Sharifan filed suit against Yazdani in another cause number; the two cases were later consolidated.[4] Yazdani pleaded that Sharifan's claims were barred at least in part by offsets due to Sharifan's misuse of partnership funds.

         The trial court conducted a bench trial in two phases: first, Yazdani's claims and then Sharifan's claims. The trial court issued an amended final judgment in May 2015.[5] The trial court ordered that Sharifan recover the sum of $12, 365, 000.00 from Yazdani. The trial court awarded Sharifan his reasonable and necessary attorney's fees of $1, 484, 950.00 for trial, as well as conditional attorney's fees for appeal. The court also awarded prejudgment interest at the rate of five percent per annum from December 16, 2009, until the date of judgment and postjudgment interest at the rate of five percent per annum. "In connection therewith, the Court hereby declare[d] that all of Sharifan's former ownership interest in Metro Hospitality Partners, Ltd. belong[ed] to Shabahram Yazdani-Beioky." Yazdani and Sharifan requested and submitted proposed findings of fact and conclusions of law.

         Yazdani filed motions for JNOV and new trial, which the trial court denied. After being directed by this court, the trial court issued findings of fact and conclusions of law on May 16, 2016. The topics covered by the 63 findings of fact included: the partnership; the August 2008 buy-sell agreement; request for declaration of forfeiture of partnership interest; Sharifan's fraud claims; the "China Trip" accounting; the 2009 settlement agreement; Sharifan's attorney's fees; and Yazdani's attorney's fees. The trial court also issued 12 conclusions of law. Both sides requested additional findings and conclusions, which the trial court did not provide.

         Yazdani brings eight issues on appeal; Sharifan brings two cross-issues and two conditional issues. Where appropriate, we consider related issues together.

         II. Post-Submission Motions

         After oral argument and submission, Sharifan filed a motion to dismiss, arguing that Yazdani's acceptance of the benefits of the trial court's judgment by taking dominion over all the partnership interests rendered his appeal moot. Further, Sharifan contends he cannot be put back in his pre-final judgment status given Yazdani's poor record-keeping and manipulation of the books since the final judgment was entered. Sharifan attached exhibits to his motion, including: a transcript of oral argument; declarations by Sharifan, CPA Bryne Liner who testified at trial, and Sharifan's trial and appellate counsel Lloyd Kelley; email correspondence dated May 20-21, 2015, between trial counsel concerning Sharifan's request for MHP's "May financials"; and the trial court's order signed February 1, 2013, appointing a master in chancery.

         Yazdani responds that any acceptance of benefits was limited to his standing on the partnership's recalculation of capital accounts. Yazdani contends that the partnership and general partner appropriately continued operating the hotel per the partnership agreement, not as a benefit of the judgment. Yazdani argues that his right to possession preceded the judgment, and his actions since then have not prejudiced Sharifan. Yazdani also filed objections and a motion to strike the declarations submitted by Sharifan.

         "'[A]djudication on the merits is preferred in Texas.'" Kramer v. Kastleman, 508 S.W.3d 211, 227 (Tex. 2017). The acceptance-of-benefits doctrine only "bars an appeal if the appellant voluntarily accepts the judgment's benefits and the opposing party is thereby disadvantaged." Id. at 217. This doctrine is based on the principle of estoppel and is rooted in equity. Id. "Conceptually, the doctrine infers an agreement to terminate the litigation because the judgment has been voluntarily paid and accepted, or implies a waiver, release of errors, or admission that the decree is valid." Id. at 218. "Whether estoppel of the right to appeal is warranted involves a fact-dependent inquiry entrusted to the courts' discretion." Id. at 228.[6] "[A] merits-based disposition must not be denied absent disadvantage to the opposing party and circumstances reflecting clear intent to acquiesce in the judgment's validity." Id. at 232. The burden of proof rests on the party asserting the doctrine, and "[t]he failure to prove all essential elements is fatal." Id. at 217.

         We conclude that Sharifan has not proven the acquiescence prong. This case concerned whether the parties entered into, and Yazdani breached, a valid oral agreement for limited-partner Yazdani to purchase Sharifan's limited-partnership interest in August 2008 and what effect, if any, a post-agreement August 31, 2009 capital call unpaid by Sharifan had on such partnership interests. During trial, Yazdani took the position that no agreement existed and, further, where Sharifan forfeited his interest or Sharifan's percentage interest was reduced to zero when he did not contribute to the capital call per the partnership agreement, that Yazdani had the right to full possession. Yazdani essentially takes this same position on appeal.

         Both before and after the judgment, there is no dispute that Yazdani was a limited partner in MHP and had rights in at least his original almost-sixty-percent partnership interest. See id. at 229. Also both before and after the judgment, Yazdani as the sole owner of the general partner MHM had the right to manage the partnership's business. See id. Post judgment, the partnership's business continues to be owning and operating the Crowne Plaza Hotel. See id. at 228-29. Post judgment, Yazdani requested findings of fact and conclusions of law, filed motions for new trial and for judgment as a matter of law, obtained a supersedeas bond, and requested additional findings of fact and conclusions of law. See DDR DB Stone Oak, LP v. Rector Party Co., LLC, No. 04-17-00018-CV, 2017 WL 6032541, at *3 (Tex. App.-San Antonio Dec. 6, 2017, no pet.) (mem. op.) ("Based on this record, we cannot infer an agreement to terminate the litigation."). With regard to Yazdani's full-interest ownership, even if Yazdani were successful on appeal, he faces at least some risk of a less-favorable outcome. See Kramer, 508 S.W.3d at 229. Considering the facts and circumstances here, we cannot conclude Sharifan has proven Yazdani's clear intent to acquiesce in the judgment's validity. See id. at 232.

         Without proof of this clear intent, Yazdani's postjudgment conduct does not rise to the level of an estoppel, and we cannot deny Yazdani a merits-based disposition. Having so denied Sharifan's motion, we also deny Yazdani's objections and motion to strike as moot.[7]

         III. Standard of Review

         In a bench trial, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Barrientos v. Nava, 94 S.W.3d 270, 288 (Tex. App.-Houston [14th Dist.] 2002, no pet.). When there is conflicting evidence, it is the province of the factfinder to resolve such conflicts. See City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005).

         In an appeal from a bench trial, the trial court's findings of fact have the same weight as a jury verdict. Aguiar v. Segal, 167 S.W.3d 443, 449 (Tex. App.- Houston [14th Dist.] 2005, pet. denied). Therefore, we review a trial court's findings of fact under the same sufficiency standards we use when determining if sufficient evidence exists to support an answer to a jury question. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Moran v. Mem'l Point Prop. Owners Ass'n, Inc., 410 S.W.3d 397, 401 (Tex. App.-Houston [14th Dist.] 2013, no pet.). We indulge every reasonable presumption in favor of the findings and judgment of the trial court, and no presumption will be indulged against the validity of the judgment. Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 252 (Tex. App.-Houston [14th Dist.] 1999, pet. denied).

         When analyzing the legal sufficiency of the evidence, we review the record in the light most favorable to the challenged finding, crediting favorable evidence if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not. See City of Keller, 168 S.W.3d at 822, 827. Evidence is legally sufficient if it "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). We will conclude that the evidence is legally insufficient to support the finding if (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. City of Keller, 168 S.W.3d at 810.

         In reviewing a factual-sufficiency point, we examine the entire record, considering the evidence both in favor of, and contrary to, the challenged findings. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). When a party challenges the factual sufficiency of the evidence supporting a finding for which it did not have the burden of proof, we may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Ellis, 971 S.W.2d at 407; Cain, 709 S.W.2d at 176. When a party attacks the factual sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).

         When a trial court makes findings of fact, they "shall form the basis of the judgment upon all grounds of recovery and of defense embraced therein." Tex.R.Civ.P. 299. However, we will not set aside a judgment because of conflicting findings of fact if the conflict can be reconciled. Estate Land Co. v. Wiese, No. 14-13-00524-CV, 2015 WL 1061553, at *4 (Tex. App.-Houston [14th Dist.] Mar. 10, 2015, pet. denied) (mem. op.); Hartford Ins. Co. v. Jiminez, 814 S.W.2d 551, 552 (Tex. App.-Houston [1st Dist.] 1991, no writ). The same rule applies to conflicts between findings of fact and conclusions of law. Jiminez, 814 S.W.2d at 552. Where findings of fact cannot be reconciled with conclusions of law, findings of fact will be deemed to control. Morton v. Nguyen, 369 S.W.3d 659, 676 (Tex. App.- Houston [14th Dist.] 2012), rev'd in part on other grounds, 412 S.W.3d 506 (Tex. 2013).

         We apply a de novo standard of review when attempting to reconcile findings. See Man Indus. (India), Ltd. v. Midcontinent Express Pipeline, LLC, 407 S.W.3d 342, 366 (Tex. App.-Houston [14th Dist.] 2013, pet. denied). We must reconcile apparent conflicts in the findings if reasonably possible in light of the pleadings and evidence, the manner of submission, and the other findings considered as a whole. Bender v. S. Pac. Transp. Co., 600 S.W.2d 257, 260 (Tex. 1980); Estate Land, 2015 WL 1061553, at *4; Zieba v. Martin, 928 S.W.2d 782, 791 (Tex. App.-Houston [14th Dist.] 1996, no writ). Where two possible interpretations exist, we choose the interpretation that will harmonize the judgment with the findings of fact and conclusions of law upon which it is based. Grossnickle v. Grossnickle, 935 S.W.2d 830, 841 (Tex. App.-Texarkana 1996, writ denied). We will not determine whether the findings reasonably may be viewed as conflicting; to the contrary, the question is whether there is any reasonable basis upon which the findings may be reconciled. Bender, 600 S.W.2d at 260.

         We review a trial court's conclusions of law de novo to determine if the trial court drew the correct legal conclusions from the facts. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). An incorrect conclusion of law does not warrant a reversal if the judgment is otherwise correct on the merits. Id.; Able v. Able, 725 S.W.2d 778, 780 (Tex. App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.) (citing Vandever v. Goettee, 678 S.W.2d 630, 635 (Tex. App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.)). Nor does an erroneous finding of fact. Vickery, 5 S.W.3d at 261; Able, 725 S.W.2d at 780. We may only reverse the trial court's judgment if the court made an erroneous finding on an ultimate fact issue; immaterial findings are harmless and are not grounds for reversal. Castro v. Castro, No. 14-11-01087-CV, 2013 WL 1928742, at *5 (Tex. App.-Houston [14th Dist.] May 9, 2013, no pet.) (mem. op.).

         IV. Issues Presented

         A. The August 2008 oral agreement

         We first consider Yazdani's third issue-"[w]hether Sharifan proved the existence of an enforceable oral contract for the purchase and sale of his partnership interest." We conclude that Sharifan did.

         To prove contract formation a party must prove, among other elements, an offer and acceptance and a meeting of the minds on all essential elements. WTG Gas Processing, L.P. v. ConocoPhillips Co., 309 S.W.3d 635, 643 (Tex. App.- Houston [14th Dist.] 2010, pet. denied); see Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex. App.-Houston [14th Dist.] 2002, no pet.). "A 'meeting of the minds' is 'merely a mutuality subpart of the offer and acceptance elements.'" WTG Gas, 309 S.W.3d at 643 (quoting Domingo v. Mitchell, 257 S.W.3d 34, 40 (Tex. App.-Amarillo 2008, pet. denied)). "Questions of contract formation must be resolved on objective standards, based upon the meaning reasonably conveyed by the parties' actions and words rather than their uncommunicated subjective intentions." Parker Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68, 73 (Tex. App.-Houston [14th Dist.] 2010, pet. denied); see Wal-Mart Stores, 93 S.W.3d 548 at 556. We view the conduct and circumstances surrounding the transaction from a reasonable person's interpretation at the time. Parker Drilling, 316 S.W.3d at 73.

         Whether the parties reached an agreement is a question of fact. Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21, 24 (Tex. App.-Houston [14th Dist.] 2005, no pet.). Whether an agreement is legally enforceable is a question of law. Id.; Gaede v. SK Invs., Inc., 38 S.W.3d 753, 757 (Tex. App.-Houston [14th Dist.] 2001, pet. denied).

         "To be enforceable, a contract must address all of its essential and material terms with 'a reasonable degree of certainty and definiteness.'" Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 237 (Tex. 2016) (quoting Pace Corp. v. Jackson, 284 S.W.2d 340, 345 (Tex. 1955)). "[A] contract must at least be sufficiently definite to confirm that both parties actually intended to be contractually bound." Id. (citing Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex. 2000)). Even when intent is clear, the agreement's terms must also be sufficiently definite to enable a court to understand the parties' obligations and give an appropriate remedy for a breach. Id.

         "However, a contract need only be definite and certain as to those terms that are 'material and essential' to the parties' agreement." Id. (citing T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992), and Radford v. McNeny, 104 S.W.2d 472, 475 (Tex. 1937)). "[M]aterial and essential terms are those that parties would reasonably regard as 'vitally important ingredient[s]' of their bargain." Id. (alteration in orig.). The material terms of a contract are determined on a case-by-case basis, with each contract considered separately. Id. (citing McCalla v. Baker's Campground, Inc., 416 S.W.3d 416, 418 (Tex. 2013), and T.O. Stanley, 847 S.W.2d at 221).

         The trial court issued several findings of fact in connection with the August 2008 buy-sell agreement, including:

6. On or about August 13, 2008, Yazdani individually agreed to purchase all of Sharifan's 40% limited partnership interest in the Partnership for $12.5 million (the "Agreement").
7. There were at least three witnesses to the transaction whereby Yazdani individually agreed to purchase all of Sharifan's 40% limited partnership interest in the Partnership for $12.5 million in August 2008.
8. The former general manager of the Hotel, Sayed Hassan, testified that Yazdani made a verbal (oral) offer to buy out 100% of Sharifan's 40% limited partnership interest of the Partnership in August 2008. Hassan testified that after some negotiations, Sharifan accepted Yazdani's offer to buy his interest for $12.5 million. Hassan testified Sharifan went to confirm the deal with Yazdani in person. Hassan testified that Yazdani confirmed to him that he and Sharifan had agreed upon $12.5 million as the purchase price and the terms were cash payment. Hassan testified that according to Yazdani there were no other terms or conditions to the purchase. Later, Yazdani confirmed again to Hassan that a deal had been made to purchase all of Sharifan's limited Partnership interest at $12.5 million cash.
9. The Court finds that all of Hassan's testimony was direct, credible and truthful.
10. Sharifan was another one of the witnesses to the Agreement. Sharifan testified that after the Partnership received an offer from a third-party group to purchase all of the Partnership's assets, Yazdani made an offer to buy out his partnership interest for $12.5 million cash sometime around August 13, 2008. Sharifan testified that after some negotiation, he accepted Yazdani's offer. Sharifan testified the deal was negotiated through Hassan and the Hotel's architect in the restaurant located in the Hotel. Sharifan testified that Hassan acted as an intermediary between him and Yazdani as to his sale of interest to Yazdani. Sharifan testified after an agreement was reached at $12.5 million for all of Sharifan's limited Partnership interest, Sharifan went down to the basement to Yazdani's office and spoke directly to Yazdani about the Agreement. Sharifan confirmed the purchase price of $12.5 million and shook hands with Yazdani solidifying the deal. Yazdani commented that at that price Sharifan was getting a "good deal." Yazdani told Sharifan to go see his lawyer, Mike Little, in a couple days to finalize the transfer of Sharifan's interest to Yazdani. Sharifan testified he then went to Little's office to execute the transfer of his interest documents. Sharifan testified that when he went to Little's office, Little told him he knew of the deal and that he was working on the transfer papers but they were not done yet but also that there wouldn't be any problem since Little had already spoken to "Bob" about the deal.
11. Sharifan testified that Little subsequently sent an e-mail that indicated Yazdani was not going to pay the $12.5 million but that "Bob" would instead pay $7.5 million for Sharifan's limited Partnership interest.
12.The Court finds that Sharifan's testimony as to Yazdani's offer to purchase Sharifan's 40% limited Partnership interest for $12.5 million cash and Sharifan's tender delivery of his interest to Yazdani was direct, credible and truthful.
13. The other witness to the transaction was Yazdani. Yazdani repeatedly denied ever having made any offer or attempt to purchase Sharifan's limited Partnership interest at any price.
14.Yazdani even denied the $7.5 million offer contained in Little's email to Sharifan in August 2008. Yazdani denied any interaction with his general manager Hassan regarding any attempt to purchase Sharifan's interest in 2008. It wasn't that Yazdani had a different version of the offers or exchange of offers or terms of any sale, Yazdani categorically denied any such offer or exchange ever happened. Yazdani testified in both phases of the trial that neither he nor any one on his behalf ever made any offers to purchase Sharifan's limited Partnership interest. Yazdani's denial also included the offer made by his attorney's [sic] at Fulbright & Jaworski in 2008 to purchase Sharifan's limited Partnership interest which said offer was in writing. Yazdani denied having any such discussion with a broker, Farschid [sic], in early 2009 at the Edwards movie theater about purchasing Sharifan's interest. Yazdani denied all of the conversations ever took place that involved him purchasing Sharifan's interest. Yazdani emphatically denied ever having made any offer to buy any portion of Sharifan's interest, period. Yazdani testified any such discussion about any such offer for him to purchase Sharifan's interest never ever happened, period.
15. In addition to the two eye witnesses [sic] who testified that Yazdani offered in August 2008 to purchase Sharifan's limited Partnership interest for $12.5 million, there was other circumstantial evidence that the Court considered.
16. Various e-mails indicated that at least some discussion had taken place in August 2008 whereby Yazdani sought to purchase Sharifan's interest. Yazdani could not explain Little's e-mail in which Little states he had just spoken to "Bob" and that he was only willing to pay $7.5 million. Yazdani could not explain the written offer made by his attorney's [sic] at Fulbright & Jaworski in 2008 offering to purchase Sharifan's interest. In addition, Little's communication to Sharifan regarding the enforceability of any such agreement after Yazdani had repudiated the Agreement was an obvious "CYA letter" evidencing that some deal had been made and that Yazdani had subsequently decided he was not going to comply with it.
17. The Court finds that Yazdani was generally not a credible witness and that he often did not testify truthfully.

. . .

22. In short, throughout both phases of the trial, the Court found that Yazdani's testimony was not credible or truthful on many key issues in the case.
23. The Partnership does not have physical Partnership ownership interests to exchange such as "stock certificates". Yazdani always maintained sole control over the books and records of the Partnership. Because there are no stock certificates or other requirements to effectuate transfer of ownership interest under the Partnership Agreement, the sale was complete when Sharifan tendered his interest to Yazdani. Sharifan tendered full performance in August 2008. Sharifan appeared as requested by Yazdani, at the office of Yazdani's attorney, Mike Little, Esq., to execute documents reflecting the exchange of Sharifan's 40% limited partnership interest to Yazdani for $12.5 million.
24. It is undisputed that Yazdani never paid anything for Sharifan's limited partnership interest in Metro Hospitality Partners, Ltd. (the "Partnership"). Sharifan made demand for payment in August 2008 and Yazdani refused to pay.

         1. Intent to be bound

         Yazdani first contends that the August 2008 oral agreement was unenforceable as a matter of law where the parties' negotiations indicated a written draft was contemplated as a final conclusion to the negotiations. Yazdani points to Sharifan's acknowledgement of and agreement with Yazdani's instruction to go see Little as conclusive evidence that Sharifan knew Yazdani did not intend to be bound absent a written agreement. Yazdani also points to the fact that the partnership agreement was in writing and to the later exchange of "complex" draft transaction documents prepared by Sharifan's attorneys.

         Considering the parties' conduct and words objectively, based on a reasonable person's interpretation, Sharifan and Yazdani had a meeting of the minds that Yazdani would buy out Sharifan's entire partnership interest for $12.5 million cash. As a general rule, intent to be bound is a question of fact. Foreca, S.A. v. GRD Dev. Co., Inc., 758 S.W.2d 744, 746 (Tex. 1988). The parties did not express, and their interactions do not otherwise conclusively convey, that Yazdani regarded their agreement as conditional or not binding until reduced to writing. According to Yazdani, he never expressed anything with regard to the August 2008 oral agreement because those negotiations did not take place. As the trial court found, there were "no stock certificates or other requirements to effectuate transfer of ownership interest under the Partnership Agreement." The trial court found that Sharifan "went to Little's office to execute the transfer of his interest documents." Yazdani's request for Sharifan to "go see Mike" and sign paperwork reasonably could be interpreted as merely the means to memorialize the already-agreed-upon transfer. See id. (upholding jury's finding on intent where "subject to legal documentation" language contained in letter regarding sale of amusement park rides was not conclusive on lack of intent to be bound). Nor does the fact that the 2005 ...


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