Elyahou Lavizadeh and Parvaneh Lavizadeh, Trustees of the Elyahou and Parvaneh Lavizadeh Trust 2004 v. Ali A. Moghadam ( 2019 )

AFFIRMED and Opinion Filed December 13, 2019
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00955-CV
ELYAHOU LAVIZADEH AND PARVANEH LAVIZADEH, TRUSTEES OF THE
ELYAHOU AND PARVANEH LAVIZADEH TRUST 2004, Appellants
V.
ALI A. MOGHADAM, Appellee
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-15-06627
MEMORANDUM OPINION
Before Chief Justice Burns, and Justices Richter and Rosenberg
Opinion by Chief Justice Burns
Appellants 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.
1
FACTUAL BACKGROUND
Moghadam is the managing member of HP Texas Holdings, LLC f/k/a Highland Park
Investments, LLC, (HP).1 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 20072 (the 2007
Lawsuit), a subsequent case filed in 2010 (the 2010 Lawsuit), as well as the instant case and this
appeal.
In the 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,3 and by executing several instruments. The Judgment
however, was not discharged by the settlement.
Rather 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
1
Although HP forfeited its corporate charter for a brief period of time during the pendency of the proceedings below,
in its brief the Trust concedes HP’s reinstatement as further evidenced by the Certificate of Filing reinstating HP as
an active corporate entity found in the record. Thus we find no standing or like issue with respect to the temporary
forfeiture.
2
Cause No. 07-04950-J, filed in the 191st District Court of Dallas County, and later appealed to this Court.
3
In 2012, while both lawsuits were pending, Dallas County and various related taxing authorities sued HP for property
taxes owed with respect to the Property.
2
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.
The 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.
In August 2017, the Trust sent a demand letter to Moghadam pursuant to the Guaranty,
seeking payment of $191,700 as indemnity,4 $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.5
On 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
4
The $51,700 was the Trust’s calculation of accrued interest following default.
5
The receiver’s notice was filed with the Court in the 2007 Lawsuit, and Moghadam’s counsel requested that the court
judicially notice all documents and pleadings filed in both the 2007 Lawsuit and the 2012 Lawsuit, over which the
same trial judge had presided.
3
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 if necessary.
Instead 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.
DISCUSSION
A. The Trust agreed to the court’s determination of the legal issues premised on
stipulated facts.
In its 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.
During 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
4
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’ stipulations).
Even if 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
5
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.
B. The trial court correctly interpreted the Guaranty.
In its second issue, the Trust argues the trial court incorrectly interpreted the Guaranty. It
asserts the parties’ settlement agreement was oral and thus requires us to examine the “context” of
the settlement to accurately construe the Guaranty. The Trust urges the words of the parties, “as
well as the surrounding facts and circumstances” demonstrate the parties’ intent was to ensure the
Trust received the $120,000 required by the Note, “free and clear” of any execution on the
Judgment, and because the payment was made to the receiver, Moghadam breached the Guaranty.
1. The case was tried on stipulated facts.
Because we must determine the standard governing our review, we necessarily determine
how the case was resolved below. Although we acknowledge an imperfect fit,6 we treat this case
as having been tried on stipulated facts pursuant to rule 263. TEX. R. CIV. P. 263 (“Parties may
submit matters in controversy to the court upon an agreed statement of facts filed with the clerk,
upon which judgment shall be rendered as in other cases; and such agreed statement signed and
certified by the court to be correct and the judgment rendered thereon shall constitute the record
of the cause.”); Lambda Const. Co. v. Chamberlin Waterproofing & Roofing Sys., Inc., 784 S.W.2d
6
We recognize one aspect of the imprecise alignment arises from the Trust’s objections to some of Moghadam’s
exhibits, filed a week after agreeing to a trial on stipulated facts. But the Trust admitted all of the same documents
we find necessary and appropriate to review the trial court’s judgment, with the exception of the receiver’s
acknowledgment of payment, to which the Trust did not object and regarding which Moghadam also appropriately
requested judicial notice.
6
122, 125 (Tex. App.—Austin 1990, writ denied) (concluding court properly treated parties’
agreement during telephone hearing that no disputed facts existed as a rule 263 “submission of
agreed statement”).
Rule 263 does not require strict compliance, and the substance of what occurred as well as
the parties’ discussion about the procedure they proposed the court utilize for resolution of the
legal issues supports application of the rule here. Lambda Const. Co., 784 S.W.2d at 125; Addison
Urban Dev. Partners, LLC v. Alan Ritchey Materials Co., LC, 437 S.W.3d 597, 601 (Tex. App.—
Dallas 2014, no pet.) (“Although the record does not contain an ‘agreed statement signed and
certified by the [district] court to be correct,’ courts have concluded that strict compliance with
rule 263 is not a prerequisite for an agreed case.”); see also Thota v. Young, 366 S.W.3d 678, 690
(Tex. 2012) (“[W]e have long favored a common sense application of our procedural rules that
serves the purpose of the rules, rather than a technical application that rigidly promotes form over
substance.”).
In reviewing a judgment entered pursuant to stipulated facts, we disregard the court’s
findings of fact and conclusions of law, issued here pursuant to the Trust’s post-judgment request.7
Markel Ins. Co. v. Muzyka, 293 S.W.3d 380, 384–85 (Tex. App.—Fort Worth 2009, no pet.) (“[I]n
a case submitted on an agreed statement of facts pursuant to Rule 263, we disregard any findings
of fact made by the trial court.”). Accordingly, we consider only whether the trial court correctly
applied the law to the agreed facts, utilizing a de novo review. Id.; Addison Urban Dev. Partners,
7
We also observe rule 263’s application mandates a standard of review more favorable to the Trust than the otherwise
discretionary review we would employ if we credited the findings of fact and conclusions of law issued at the Trust’s
request. Addison Urban Dev. Partners, LLC, LC, 437 S.W.3d at 600–01 (de novo review of judgment issued pursuant
to rule 263 procedure is less deferential than the discretionary review otherwise afforded, “because a trial court has no
discretion in deciding what the law is or in properly applying it.”) (internal quotation omitted).
7
LLC, 437 S.W.3d at 600–01 (“In a rule 263 agreed case, the only issue on appeal is whether the
district court properly applied the law to the agreed facts.”).
2. The Guaranty lacks ambiguity and parol evidence is unnecessary.
Even if the Trust had raised ambiguity before conceding no questions of fact existed,
because we reject use of parol evidence to create ambiguity and find none in the plain language of
the Guaranty, we reject the Trust’s contention that the Guaranty was ambiguous as well as its parol
evidence. In support of its ambiguity argument, the Trust invites us to adopt a circular excuse for
considering parol evidence, asserting the context in which the Guaranty came into existence
reveals ambiguity with respect to the meaning of the operative language, thereby necessitating
parol evidence to clarify the parties’ intent. Specifically, the Trust asserts the Guaranty is
ambiguous because the parties’ true intent was to ensure the Trust received payment on the Note.
In support of this argument, the Trust attempts to contort the Guaranty’s requirement that
Moghadam indemnify the Trust in the event anyone executed on the Judgment as a prohibition
that HP8 forego all collection efforts. We reject the Trust’s interpretation.
i. The trial court did not err in refusing to consider testimonial parol
evidence.
As discussed above, given the language of the Guaranty we are called to construe, we find
no use for the parol evidence the Trust sought to introduce through live testimony. Further,
although courts may consider the “context in which an agreement is made,” the parties may not
8
The Trust also contends the “language of the Guaranty is not limited to Moghadam acting in his individual capacity,”
we reject this argument because Moghadam signed the Guaranty without any reference to HP, and nowhere in the
Guaranty is HP even impliedly included as a party. Because HP was not a party to the Guaranty we accordingly reject
any assertion that HP was constrained in any manner by the Guaranty’s terms. See, e.g., Roe v. Ladymon, 318 S.W.3d
502, 516 (Tex. App.—Dallas 2010, no pet.) (individual and partner in limited liability company does not become a
party to an agreement where he executes contract on behalf of disclosed company). Even if we were to determine HP
were somehow bound by the Guaranty’s provisions, however, the Trust’s arguments would still fail because as we
conclude bel, HP did not “execute” on the Judgment.
8
rely on extrinsic evidence “to create an ambiguity or to give the contract a meaning different from
that which its language imports.” Anglo–Dutch Petroleum, 352 S.W.3d at 451 (internal quotation
marks omitted); Lewis v. E. Tex. Fin. Co., 136 Tex. 149, 146 S.W.2d 977, 980 (1941) (courts may
not consider “proof of circumstances” evidence “when the instrument involved, by its terms,
plainly and clearly discloses the intention of the parties, or is so worded that it is not fairly
susceptible of more than one legal meaning or construction”); First Bank v. Brumitt, 519 S.W.3d
95, 109–10 (Tex. 2017) (“Extrinsic evidence cannot be used to show that the parties probably
meant, or could have meant, something other than what their agreement stated.”). The “contextual”
parol evidence offered by the Trust sought to define the parties’ expressed intent, rather than aid
in determining such intent, and thus we reject it.
ii. No ambiguity exists regarding the parties’ failure to prohibit all
collection activities, including turnover orders.
Ambiguity presents a question of law determined without resort to the parties’ arguments
regarding its existence. 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);
Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 591 (Tex. 1996) (“The
failure to include more express language of the parties intent does not create an ambiguity when
only one reasonable interpretation exists.”). We ascertain the parties’ intentions by examining the
entire writing, and give effect to all provisions so none are rendered meaningless. Coker v. Coker,
650 S.W.2d 391, 393 (Tex. 1983); Green Meadow Oil & Gas Corp. v. EOG Res., Inc., 390 S.W.3d
625, 627 (Tex. App.—Dallas 2012, no pet.). We “presume parties intend what the words of their
contract say” and interpret contract language according to its “plain, ordinary, and generally
accepted meaning” unless the instrument directs otherwise. URI, Inc., 543 S.W.3d at 764. We also
ignore parol evidence that varies or contradicts the contract. Id. at 757 (“[E]xtrinsic evidence may
9
only be used to aid the understanding of an unambiguous contract’s language, not change it or
“create ambiguity.”).
We also observe rules of construction aimed specifically at guarantees. Although the extent
of a guarantor’s liability generally depends on the principal’s liability, a guaranty may restrict or
expand the guarantor’s liability, independently of the underlying debt. Interstate 35/Chisam Rd.,
L.P. v. Moayedi, No. 05-16-00196-CV, 2017 WL 1046768, at *3 (Tex. App.—Dallas Mar. 20,
2017, no pet.); Dreiling v. Sec. State Bank & Tr., No. 01-14-00257-CV, 2015 WL 1020212, at *4
(Tex. App.—Houston [1st Dist.] Mar. 5, 2015, no pet.). The terms of a guaranty, however, are
strictly construed in favor of the guarantor, and “will not be extended, either by construction or
implication, beyond the written terms of the agreement.” Interstate 35/Chisam Rd., LP, 2017 WL
1046768, at *3; Fed. Deposit Ins. Corp. v. Attayi, 745 S.W.2d 939, 943–44 (Tex. App.—Houston
[1st Dist.] 1988, no writ) (“A guarantor may require that the terms of his guaranty be followed
strictly; the guaranty agreement may not be extended beyond its precise terms by construction or
implication.” (emphasis original).
The language in the Guaranty we must construe provided:
The $120,000.00 owing by HP Texas Holding, LLC and guaranteed by Guarantor
shall not be subject to any claim of offset by virtue of any amount owing by Lender9
pursuant to DC-07-04950 which Guarantor agrees not to execute on this obligation
and indemnifies Lender from any damage it suffers as the result of anyone
executing on such judgment.
The plain language of the Guaranty prohibits “claims of offset” and execution. It does not
prohibit all collection efforts, including collecting on the Judgment through a turnover proceeding
by which HP acquired the Note. We find support for our conclusion and evidence of the parties’
objective intent by comparing the Guaranty and the Note, and observing provisions lacking from
9
The Guaranty defined the trustees and the Trust as Lender.
10
both documents. See David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 451 (Tex. 2008) (collateral
and consistent exception to parol evidence rule allows consideration of “a prior or
contemporaneous agreement that is both collateral to and consistent with a binding agreement, and
that does not vary or contradict the agreement’s express or implied terms or obligations.”); Neel v.
Tenet HealthSystem Hosps. Dallas, Inc., 378 S.W.3d 597, 605 (Tex. App.—Dallas 2012, pet.
denied) (objective intent, rather than parties’ subjective intent, governs contract construction
analysis). First, the Note does not preclude HP from executing, or otherwise collecting, the
Judgment—a provision that would logically have been included in an agreement in which HP was
the principal obligor, if HP was also impliedly prohibited from the same activity by the Guaranty.
Indeed, the Note is silent with respect to offset. Second, in failing to release the Judgment, the
parties objectively expressed their intent that the Judgment was not rendered worthless by their
settlement and manifested their mutual intent to allow collection or similar activities, so long as
Moghadam indemnified the Trust in the event of damages arising from an execution.
Finally, in reaching this conclusion, we do not render the language at issue “surplusage,”
as asserted by the Trust. We observe the parties—both of whom were represented and whose
counsel drafted the language at issue—used specific, narrow legal terms although presumably they
knew how to describe and prohibit all collection efforts by which the Trust could be deprived of
the value of the Note. As discussed below, we give effect to each term and phrase utilized by the
parties, but particularly with respect to interpretation of a Guaranty, we will not expand the
meaning of the terms chosen by the parties. The Guaranty prohibited “claims of offset”, as well as
execution. Neither occurred here.
11
3. Moghadam did not breach the Guaranty.
Although not entirely clear, the Trust appears to argue that (a) because the Guaranty
provided the $120k owed by HP under the Note and guaranteed by Moghadam was “not subject
to any claim of offset by virtue of any amount owing” pursuant to the Judgment, payment to the
receiver for the benefit of HP did not satisfy the Note or discharge Moghadam’s guarantee
obligation, and constituted a breach by Moghadam; and, (b) because the Note was not satisfied,
Moghadam breached the Guaranty in failing to indemnify the Trust for its damages caused by
HP’s execution. We reject both arguments.
i. Payment on the Note to the receiver was not an offset, but discharged
the Guaranty.
Payment made to the receiver, even if made by Moghadam,10 was not an offset. The right
of setoff recognizes that where parties are indebted to each other,11 the real amount in issue is the
difference between the two debts. Bandy v. First State Bank, Overton, Tex., 835 S.W.2d 609, 618
(Tex. 1992), citing Studley v. Boylston Nat'l Bank, 229 U.S. 523, 528, 33 S. Ct. 806, 808, 57 L. Ed.
1313 (1913) (right of setoff “grounded on the absurdity of making A pay B when B owes A”).
Pursuant to the doctrine, entities who owe each other money apply the mutual debts against each
other, thereby revealing the actual and remaining debt. Sommers v. Concepcion, 20 S.W.3d 27,
35 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Rather than applying the amount owed
on the Note against the Judgment to render payment unnecessary, the principle and interest due
10
The Trust contends the payment made to the receiver was made by Moghadam rather than HP, because at the time
of the payment, HP had temporarily forfeited its corporate charter. We find this argument wholly irrelevant, as well
as incorrect from a legal standpoint. So long as a statutory right of reinstatement exists, forfeiture of a corporate charter
does not extinguish the corporation’s legal existence. Lighthouse Church of Cloverleaf v. Texas Bank, 889 S.W.2d
595, 601 (Tex. App.—Houston [14th Dist.] 1994, writ denied). Nonetheless, in his brief, Moghadam does not dispute
that he made the payment HP owed on the Note. Further, the Trust does not assert the payment, whether made by HP
or Moghadam, was insufficient to discharge HP’s obligation on the Note.
11
We question whether Moghadam’s obligation on the Guaranty was mutual to the debt the Trust owed to HP on the
Judgment, but find resolution of that issue unnecessary.
12
were paid. Thus, the parties engaged in the very conduct setoff seeks to prevent: payment by one
who is owed more from the party who receives payment. Merely reducing the amount owed on
the Judgment through payment on the Note does not convert payment into offset. Setoff did not
occur, and thus Moghadam did not breach the Guaranty by paying HP the amount due on the Note.
Moghadam’s liability on the Guaranty was dependent on the existence of the underlying
obligation. See e.g., Republic Nat’l Bank of Dallas v. Nw. Nat’l Bank of Fort Worth, 578 S.W.2d
109, 114 (Tex. 1978) (guaranty creates a secondary obligation pursuant to which guarantor may
be required to perform if the primary obligor fails to pay). Once the Note was discharged, the
Trust could not prevail on a claim for payment on the Guaranty. See 423 Colony, Ltd. v. Indep.
Executors of Estate of Kern, No. 02-18-00032-CV, 2019 WL 2223579, at *3 (Tex. App.—Fort
Worth May 23, 2019, no pet.) (nonpayment of underlying obligation is one element of claim
against guarantor); Julka v. U.S. Bank Nat’l Ass’n, 516 S.W.3d 84, 87 (Tex. App.—Houston [1st
Dist.] 2017, no pet.) (same). Accordingly, Moghadam’s obligation to pay the principle and interest
guaranteed was discharged when the Note was paid.
ii. The turnover order was not an “execution” and Moghadam therefore
owed no indemnity.
Even if we were to conclude that Moghadam’s agreement as guarantor “not to execute on
this obligation” constrained HP—a conclusion we need not reach—we would still reject the Trust’s
underlying corollary assertion, that the turnover order was an “execution.” The Trust relies solely
on Pierson v. Hammond, 22 Tex. 585, 587 (1858), for its assertion that an execution “means the
process by which the sentence of the law is put in force; it is a general term, which applies to all
writs, the object of which is to enforce the judgment of a court.” But as our sister court held in
distinguishing Pierson, a turnover order is neither a writ of execution, nor an execution. Keith M.
Jensen, P.C. v. Briggs, No. 02-14-00096-CV, 2015 WL 1407357, at *3 (Tex. App.—Fort Worth
13
A.K. Marsh. 26, 2015, no pet.) (turnover order is not an execution and thus did not prevent judgment from
becoming dormant). We recognize the primary holding of Keith M. Jensen, P.C. addressed a writ
of execution as the requirement at issue for preventing dormancy, but the breadth of the discussion
as well as the rules upon which the holding rests—which address “execution” rather than just
“writs of execution”—easily encompass our holding as well. See Keith M. Jensen, P.C., 2015 WL
1407357, at *3. For instance, an execution must be addressed to any sheriff or constable, TEX. R.
CIV. P. 622, and further, must conform to the requirements of rule 629, by including the clerk’s
signature and seal of the court, and a mandate that the officer execute it according to its terms.
TEX. R. CIV. P. 629; Keith M. Jensen, P.C., 2015 WL 1407357, at *3. Moreover, judgments are
enforceable by execution “or other appropriate process.” TEX. R. CIV. P. 621.
The turnover order satisfied none of these requirements, and instead was “other appropriate
process” by which HP sought to collect on the Judgment. Thus, the turnover order was not an
execution that triggered Moghadam’s obligation to indemnify the Trust, and Moghadam did not
breach the Guaranty by failing to indemnify the Trust for damages, if any, suffered as the result of
any execution. We find no error in the trial court’s judgment in favor of Moghadam regarding the
Trust’s breach of contract claim, as a matter of law and without the aid of parol evidence. We
overrule the Trust’s second issue.
C. We need not consider Moghadam’s motion for protection.
In its final issue, the Trust argues the trial court erred in granting Moghadam’s motion for
protective order, by which he sought to prevent the Trust from calling his attorney as a witness
regarding the formation of the settlement agreement and the parties’ intent with respect to the
Guaranty. The Trust seeks a ruling on the issue only if this Court agrees the case should be
14
remanded for a trial on the merits. Due to our conclusion on the merits of the judgment entered by
the trial court, we need not consider the Trust’s third issue and we overrule it.
Finding no error in the trial court’s judgment, we affirm.
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
180955F.P05
15
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ELYAHOU LAVIZADEH AND On Appeal from the 191st Judicial District
PARVANEH LAVIZADEH, TRUSTEES Court, Dallas County, Texas
OF THE ELYAHOU AND PARVANEH Trial Court Cause No. DC-15-06627.
LAVIZADEH TRUST 2004, Appellant Opinion delivered by Chief Justice Burns,
III. Justices Richter and Rosenberg
No. 05-18-00955-CV V. participating.
ALI A. MOGHADAM, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee ALI A. MOGHADAM recover his costs of this appeal
from appellant ELYAHOU LAVIZADEH AND PARVANEH LAVIZADEH, TRUSTEES OF
THE ELYAHOU AND PARVANEH LAVIZADEH TRUST 2004.
Judgment entered December 13, 2019
16