Appeal from the 333rd District Court Harris County, Texas
Trial Court Cause No. 2009-71319
consists of Justices Christopher, Brown, and Wise.
W. Brown Justice
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
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.
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.
the motions, overrule the issues and cross-issues, and
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.
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."
The buyout negotiations
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
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."
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.
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.
The capital calls
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."
The bench trial
November 3, 2009, MHM and Yazdani filed suit against
Sharifan. MHP was later added as a plaintiff.
Yazdani 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. 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. Yazdani pleaded that Sharifan's claims
were barred at least in part by offsets due to Sharifan's
misuse of partnership funds.
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. 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.
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.
brings eight issues on appeal; Sharifan brings two
cross-issues and two conditional issues. Where appropriate,
we consider related issues together.
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.
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.
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. "[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.
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.
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.
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.
Standard of Review
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).
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).
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.
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).
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).
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.
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.).
The August 2008 oral agreement
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.
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.
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.
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.
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
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
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
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
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
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
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
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.
Intent to be bound
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.
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 ...