Appeal from the County Civil Court at Law No. 1 Harris
County, Texas Trial Court Case No. 1091270
consists of Justices Lloyd, Kelly, and Hightower.
Kamran Arab N/K/A Kamran Armani Azar ("Kamran")
sued appellant Masoud Sanati for $50, 000, the principal
amount due on a promissory note. Sanati maintained that the
case was more complicated than a typical suit on a promissory
note because the men had known each other for decades and had
been involved in other business ventures. Sanati pleaded the
affirmative defense of offset, arguing that he had made
excess monthly payments to Kamran related to the $50, 000
promissory note and that the overpayment should have been
applied to the principal indebtedness. Sanati also asserted
counterclaims for breach of contract, quantum meruit, and
fraud, all relating to other alleged dealings between the
men. The trial court granted summary judgment in favor of
Kamran, and Sanati appealed.
raises three issues on appeal, arguing that the trial court
erred by granting traditional summary judgment on
Kamran's claim (issues 1 and 2), and that the court erred
by granting a no evidence summary judgment as to his
counterclaims (issue 3).
reverse the trial court's summary judgment for Kamran
because Sanati's summary judgment evidence raised a
genuine question of material fact on his affirmative defense
of offset. We affirm the trial court's no evidence
summary judgment on Sanati's counterclaims because his
summary judgment evidence did not support each element of
each cause of action.
and Kamran had been acquainted for 40 years in 2012, when
Kamran transferred $50, 000 to Sanati. According to the terms
of a promissory note dated May 20, 2012, the $50, 000 was a
one-year loan from Sanati's "old friend" Kamran
to be used in his "business venture." The
promissory note required Sanati to pay $475 in monthly
interest payments for twelve months and a balloon payment of
the principal amount of the loan, $50, 000, on May 19, 2013.
Sanati is identified as the borrower in the signature block,
which also identified two witnesses and provided spaces for
began making $475 monthly payments in June 2012. These
monthly payments continued through February 2017, but Sanati
did not make a lump sum payment of $50, 000. In March 2017,
Kamran sued Sanati for breach of contract, breach of implied
contract, and unjust enrichment. Kamran also sought
attorney's fees and pre- and post-judgment interest.
answered, pro se, with a general denial and verified denials,
specifically denying that he had signed the promissory note
and that there was no consideration for the note. Sanati also
pleaded the following affirmative defenses: (1) official
mistake; (2) election of remedies; (3) res judicata and
collateral estoppel; (4) statute of limitations and laches;
(5) offset; (6) offset by counterclaim; (7) waiver; and (8)
accord and satisfaction.
September 2017, Kamran filed a traditional motion for summary
judgment on his claims. His summary judgment evidence
included his affidavit and an unsigned copy of the promissory
note. The trial court did not rule on this motion for summary
judgment, and in November, Sanati filed counterclaims for
breach of contract, fraud, and quantum meruit.
alleged that in May 2012, Kamran asked him for assistance in
making investments of at least $500, 000 in the United States
so that he could qualify for permanent residency. Sanati
maintained that he offered Kamran an opportunity to buy his
50% interest in a restaurant and negotiated with his partner
to allow the sale to proceed. However, the sale did not
proceed because, according to Sanati, Kamran "insisted
on a 51% interest for no additional consideration."
also alleged that he offered Kamran a real estate investment
opportunity. Sanati stated that he owned a building company
that had successfully developed unimproved property into
profitable residential units. He averred that he found an
unimproved parcel of land on Anita Street in Houston, and he
offered to develop it into three townhouses and share the
profit with Kamran. Sanati alleged that Kamran paid for the
land by giving his brother Kambiz Aubon money to pay for it.
Kambiz then acquired the property in the name of Aubon
Property, an entity created by Kambiz's daughter, Delara
Aubon, for the purpose of the project. According to Sanati,
Kambiz and Delara "represented themselves as
agents" for Kamran. Sanati alleged that after he had
expended time and money on preliminary development work,
Kamran decided not to proceed. He alleged a lost opportunity
of approximately $78, 000.
January 2018, Kamran filed another traditional motion for
summary judgment as to his claims and a no evidence motion
for summary judgment as to Sanati's counterclaims. His
summary judgment evidence consisted of: (1) his affidavit, in
which he averred that Sanati had not made the $50, 000
balloon payment that was due in April 2013 and that after
"allowing all offsets, credits, and payments, there is
due and owing to me on the contract $50, 000.000 plus
interest;" (2) a signed copy of the May 2012 promissory
note; (3) an email chain from May 2012 regarding Sanati's
receipt of the money; (4) bank records showing the monthly
$475 payments that Sanati made from June 2012 ...