Court of Appeals of Texas, Fifth District, Dallas
ELYAHOU LAVIZADEH AND PARVANEH LAVIZADEH, TRUSTEES OF THE ELYAHOU AND PARVANEH LAVIZADEH TRUST 2004, Appellants
ALI A. MOGHADAM, Appellee
Appeal from the 191st Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-06627
Chief Justice Burns, and Justices Richter and Rosenberg
D. BURNS, III CHIEF JUSTICE
Elyahou Lavizadeh and Parvaneh Lavizadeh, Trustees of the
Elyahou Lavizadeh and Parvaneh Lavizadeh Trust 2004
(collectively, the Trust) appeal a judgment rendered in favor
of Ali A. Moghadam regarding Moghadam's alleged breach of
a guaranty. In three issues, the Trust complains the trial
court impermissibly denied its right to a jury trial, erred
in construing the guaranty and finding no breach by Moghadam,
and in granting Moghadam's motion for protection
regarding the testimony of its attorney, sought by the Trust.
Finding no error, we affirm.
is the managing member of HP Texas Holdings, LLC f/k/a
Highland Park Investments, LLC, (HP). In 2006, HP sold an
apartment complex to the Trust (the Property). The sale
generated three lawsuits between and among these parties, a
case filed in 2007 (the 2007 Lawsuit), a subsequent case
filed in 2010 (the 2010 Lawsuit), as well as the instant case
and this appeal.
2007 Lawsuit, HP obtained a judgment against the Trust in the
principle amount of more than $1.9 million (the Judgment).
Although HP reacquired the Property pursuant to a
constable's auction, the Trust also appealed the
Judgment. HP subsequently filed the 2010 Lawsuit alleging the
Trust had made certain fraudulent transfers. While the
Judgment was on appeal and the 2010 Lawsuit was pending, in a
2014 telephone call between certain counsel and the son of
the trustees, the parties settled both lawsuits by agreeing
to dismiss the 2007 Lawsuit appeal and the 2010 Lawsuit,
resolve a related tax lawsuit,  and by executing several
instruments. The Judgment however, was not discharged by the
than agreeing to offset or reduce the amount of the Judgment
the Trust owed to HP, the parties executed (a) a promissory
note by which HP agreed to pay $120, 000 to the Trust by a
date certain (the Note); (b) a Deed of Trust on the Property
securing the Note; and, (c) a personal guaranty executed by
Moghadam, individually, in favor of the Trust (the Guaranty).
The Guaranty prohibited "any claim of offset" as
between the amount owed pursuant to the Note and the
Guaranty, and the Judgment. It also included Moghadam's
agreement not to execute on the Judgment, and his promise to
indemnify the Trust for damages caused by such execution.
Trust did not pay the Judgment and HP did not pay the $120,
000 due under the Note. Five months after HP defaulted on the
Note and pursuant to the still unsatisfied Judgment, HP
obtained a turnover order by which the Note and Deed of Trust
were turned over to a receiver for sale or collection. When
the Trust's emergency motion to dissolve the turnover
order and discharge the receiver was denied, it filed the
instant lawsuit against Moghadam only, alleging Moghadam had
breached the Guaranty-through HP's motion for turnover
order and appointment of receiver-which the Trust asserted
was an execution in violation of the Guaranty.
August 2017, the Trust sent a demand letter to Moghadam
pursuant to the Guaranty, seeking payment of $191, 700 as
indemnity,  $1, 000 in attorney's fees, "plus
any post-judgment interest." On September 6, 2017, the
receiver notified both parties he had received payment
"in full and final satisfaction of the Note" in the
amount of $191, 700 and would distribute that amount to HP,
the judgment creditor.
September 19, 2017, the parties appeared for trial and
several pre-trial motions, including HP's motion for
protective order arising from the Trust's designation of
HP's counsel as a fact witness. The Trust asserted
HP's counsel's testimony was relevant to the terms of
the oral settlement and the parties' intent regarding the
Guaranty's terms. During arguments before jury selection
commenced, the parties disclosed that Moghadam had paid the
principle amount owed under the Note plus interest. After
further discussion with the parties and following their
suggestions, the judge informed the parties that until the
remaining legal issues were resolved, she saw no factual
issues and no reason to present the case to a jury. The court
admitted the Trust's exhibits, agreed to the parties'
proposal regarding stipulated admission of Moghadam's
exhibits (which were admitted on the same day although
submitted to the court a few days later), gave each side a
time-line for additional briefing regarding the legal issues,
and stated she would conduct a further hearing and jury trial
of filing a brief regarding the legal issues-whether payment
on the Guaranty to the receiver operated as an offset
prohibited by the Guaranty rather than payment on the Note as
guaranteed-the Trust briefed its denial of the right to a
jury trial. The trial court entered judgment in favor of
Moghadam, and this appeal followed.
The Trust agreed to the court's determination of the
legal issues premised on stipulated facts.
first issue, the Trust complains the trial court infringed on
its Constitutional right to a jury trial by "sua sponte
dismissing the jury trial" and deciding the case solely
upon documentary evidence. The Trust, however, not only
failed to object to the proposal, it consented.
the hearing conducted prior to jury selection, the
Trust's counsel initially stated "for the record
that we're here on a jury trial setting" and he
believed "factual issues [existed] that may need to be
presented to the jury. . .", however, he subsequently
agreed to Moghadam's counsel's proposal to stipulate
all exhibits into evidence. More specifically, the Trust
agreed, "it would be appropriate" to have a
"summary trial by the Judge on those issues, and then if
we need a jury on a fact issue . . ." the parties would
return to court for further proceedings. Following this
exchange and an off-the-record discussion, the Trust offered
18 exhibits into evidence, and the court admitted them.
Moghadam's exhibits were likewise deemed admitted at the
same time although submitted electronically a few days later.
We conclude the Trust's agreement with this procedure
waived any objection to the court's refusal to submit any
issues to a jury. See Ortega-Carter v. Am. Int'l
Adjustment Co., 834 S.W.2d 439, 441-42 (Tex. App.-Dallas
1992, writ denied) ("'[S]tipulation' is an
agreement, admission, or concession made in a judicial
proceeding by the parties or their attorneys respecting some
matter incident thereto," which may not be withdrawn
prior to entry of judgment if previously accepted); see
also e.g., Kupersmith v. Weitz, 2006 WL 3407832, *4,
(Tex. App.-Houston [14th Dist.] Nov. 28, 2006, no
pet.) (court correctly gave effect to parties'
we considered the Trust's brief, submitted almost three
weeks after its stipulation as a sufficient objection to
preserve entitlement to a jury or withdraw its consent for
the court's disposition on stipulated facts, we would
find no error. The right to a jury trial attaches only when
controverted questions of fact exist. Sullivan v.
Barnett, 471 S.W.2d 39, 44 (Tex. 1971); Wells Fargo
Bank, N.A. v. Leath, 425 S.W.3d 525, 531 (Tex.
App.-Dallas 2014, pet. denied). In neither this Court nor the
trial court has the Trust identified any factual issue. As
discussed below, construction of the Guaranty is a question
of law. URI, Inc. v. Kleberg Cty., 543 S.W.3d 755,
763 (Tex. 2018) (Mere disagreement by the parties regarding
contractual interpretation does not prove ambiguity). The
existence of a breach, where the facts are undisputed,
likewise presents only a question of law. Grohman v.
Kahlig, 318 S.W.882, 887 (Tex. 2010) ("whether a
party has breached a contract is a question of law for the
court, not a question of fact for the jury, when the facts of
the parties' conduct are undisputed or conclusively
established."). Moreover, an abuse of discretion
standard governs denial of a jury trial. Mercedes-Benz
Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).
Several weeks after agreeing to a summary trial of the legal
issues, the Trust filed a brief objecting to dismissal of the
jury panel and argued a jury must decide questions of fact.
It did not identify, however, any factual issues, but rather
argued instead that the settlement was comprised of a series
of documents, including the Guaranty. But the manner in which
the settlement arose and the various documents evidencing the
settlement do not create a fact issue, particularly with
respect to the legal interpretation of the Guaranty. We
overrule the Trust's first issue.
The trial court correctly ...