Ali Yazdchi v. Unauthorized Practice of Law Committee ( 2010 )

Opinion issued July 1, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00065-CV

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Ali YaZDchi, Appellant

V.

Unauthorized Practice of Law Committee, Appellee

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Case No. 2006-66712

MEMORANDUM OPINION

          Appellant, Ali Yazdchi, appeals a summary judgment rendered in favor of appellee, the Unauthorized Practice of Law Committee of the Supreme Court of Texas (“Committee”).  The summary judgment rendered in favor of the Committee permanently enjoins Yazdchi from engaging in the unauthorized practice of law.  In four issues, Yazdchi contends the trial court erred because (1) affidavits supporting the Committee’s summary judgment motion contained “conclusory and hearsay statements,” (2) it did not allow him to testify at the temporary injunction hearing, (3) he denied all requests for admissions, and (4) he stated in an affidavit that he never practiced law without a license.  We conclude we lack jurisdiction to address his second issue regarding the temporary injunction.  We further conclude that Yazdchi waived error regarding his other issues.

          We affirm.

Background

          To protect the public, the Supreme Court of Texas appoints nine members to the Committee for the purposes of investigating and prosecuting persons who practice law without authorization.[1]  The Committee pursued an administrative action against Yazdchi, giving him the opportunity to attend a hearing before the Committee’s Houston Subcommittee.  Although the Subcommittee notified Yazdchi of an administrative hearing to address allegations of his unauthorized practice of law, Yazdchi failed to appear.  Because Yazdchi failed to appear at the administrative hearing, it instituted a lawsuit against Yazdchi to enjoin him from engaging in the unauthorized practice of law.

          The Committee brought suit against Yazdchi in 2006.  It petitioned for a declaratory judgment against Yazdchi, and requested the court to temporarily and permanently enjoin him from the unauthorized practice of law.  The trial court held a temporary injunction hearing in November 2007.  At the hearing, the Committee produced evidence that Yazdchi did not have a license to practice law in Texas.  Other evidence produced by the Committee shows that Yazdchi set up a business under his alias, Al Giovanni, called “Giovanni and Associates.” It further shows that under his Giovanni alias, Yazdchi attempted to represent multiple people in insurance claims. Yazdchi later sought payment from insurance companies under the auspice that he represented clients with claims against the insurance companies.  One letter in evidence shows Yazdchi asked Farmers Insurance Group to send him over $29,000 on behalf of Mariana Gonzales, a “client” of his. Yazdchi’s attorney, Michael O’Conner, later sent a letter to Farmers Insurance Group instructing Farmers “not to pay Ms. Gonzales any insurance proceeds” because “Mr. Giovanni has expended services and monies in connection with [Gonzales’s] insurance claim.”  An affidavit from Michele Quattlebaum states that Yazdchi admitted to her that he “was not a licensed Texas attorney but an ‘international attorney’ and has more ‘power’ than the State Bar of Texas.”  She continued and stated that her insured, Marianna Gonzales, “thought he was an attorney as he provided h[er] a letter of ‘representation’ and a ‘Letter of Protection’ of the medical bills, after ‘attorney fees are taken out.’” She then stated, “[h]e admitted to [her] he does not have nor need a Texas license to represent clients in Texas because he is far better than a Texas attorney,” and that “[h]e threatened [her] if [she] raised an issue about it when [she] requested proof [that] he was an attorney.” 

          The trial court granted the temporary injunction based upon the evidence and testimony produced at the hearing and set a trial date for the permanent injunction.  The Committee later moved for summary judgment and supported its motion with evidence and testimony from the temporary injunction hearing.  In October 2008, based upon the evidence provided by the Committee, the trial court granted the Committee’s motion for summary judgment and permanently enjoined Yazdchi from the unauthorized practice of law. This appeal followed.

Temporary Injunction

          In his second issue, Yazdchi contends the trial court erred because it denied him the opportunity to “defend or testif[y] in his defense.”  To support his assertion, Yazdchi points to a portion of the record containing the temporary injunction hearing.  The record states,

[Yazdchi]:   Your Honor, I would like to testify.  I would like to testify in this proceeding.

The Court:            No, sorry.  I granted [the Committee’s] relief without your testimony so there’s nothing for you to testify about.

[Yazdchi]:   Okay.

          Yazdchi’s complaint regards the temporary injunction. The trial court has already entered a permanent injunction against Yazdchi.  A final judgment renders an appeal relating to a temporary injunction moot. See Lincoln Property Co. v. Kondos, 110 S.W.3d 712, 716 (Tex. App.—Dallas 2003, no pet.) (citing Richards v. Mena, 820 S.W.2d 372, 372 (Tex. 1991) (final injunction moots appeal of temporary injunction)).

          We overrule Yazdchi’s second issue.

Waiver of Error

          We conclude that Yazdchi has waived his three remaining issues for failure to preserve error before the trial court or for failure to adequately brief his issues.  See Tex. R. App. P. 33.1 (as prerequisite to presenting complaint for appellate review, record must show that complaint was made to trial court by timely request, objection, or motion and that trial court (1) ruled on request, objection, or motion, either expressly or impliedly, or (2) refused to rule on request, objection, or motion, and complaining party objected to refusal); Tex. R. App. P. 38.1(i) (stating that brief must contain clear and concise argument for contentions made with appropriate citations to authorities and record).

          A.      Summary Judgment Evidence 

In his first issue, Yazdchi contends the trial court erred in granting a permanent injunction against him.  The permanent injunction was granted through a summary judgment.  Yazdchi contends that the affidavits the Committee used to support its summary judgment were insufficient evidence because the affidavits contained “conclusory and hearsay statements.”

                    1.       Standard of Review

          We review summary judgments de novo.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).  Summary judgment is proper only when a movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c).  In reviewing a summary judgment, we must indulge every reasonable inference in favor of the nonmovant, take all evidence favorable to the nonmovant as true, and resolve any doubts in favor of the nonmovant.  Valence Operating Co., 164 S.W.3d at 661. 

Summary judgment may be granted on the basis of uncontroverted testimonial evidence of an interested witness if that evidence “is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.” Tex. R. Civ. P. 166a(c); Brandes v. Rice Trust, Inc., 966 S.W.2d 144, 149 (Tex. App.—Houston [14th Dist.] 1998, pet. denied).  The unauthorized practice of law is a proper subject for summary judgment.  Crain v. Unauthorized Practice of Law Comm., 11 S.W.3d 328, 332 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).  When activities alleged to be the practice of law are undisputed, courts have the inherent power to determine on a case-by-case basis whether those activities constitute the unauthorized practice of law.  Id. 

                    2.       Analysis

Yazdchi asserts the trial court erred because the summary judgment was based upon affidavits containing “conclusory and hearsay statements.”  An objection based on a summary judgment affidavit’s conclusory statements is an objection to substance, which may be raised for the first time on appeal; whereas, an objection based on lack of foundation or hearsay is an objection to form, which requires a written ruling for appellate review. See Green v. Indus. Specialty Contractors, 1 S.W.3d 126, 130 (Tex. App.—Houston [1st Dist] 1999, no pet.).

          At the outset, we note that the trial court did not rule on any objections by Yazdchi to the affidavits.  As a result, Yazdchi’s objections as to the form of the affidavits are waived.  See Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex. App.—Dallas 2006, no pet.) (“[T]here must be some indication that the trial court ruled on the objections in the record or in the summary judgment itself, other than the mere granting of the summary judgment.”).   

Yazdchi’s objection on appeal that the affidavits are conclusory is an objection to the substance of the affidavit, which may be raised for the first time on appeal.  See Green, 1 S.W.3d at 130 (citing City of Wilmer v. Laidlaw Waste Sys., Inc., 890 S.W.2d 459, 467 (Tex. App.—Dallas 1994), aff’d, 904 S.W.2d 656, 660–661 (Tex. 1995)).  Thus, Yazdchi did not need to obtain a ruling to raise this objection on appeal.  See id.  Nevertheless, Yazdchi’s argument on appeal is vague and inadequately briefed.  Yazdchi does not cite to the record.  His sole argument is that the statements are conclusory because “[he] never communica[ted] with [the Committee] or their witnesses in addition never met them [sic].”  Finally, he cites two cases that do not support his assertions.  Both of Yazdchi’s citations to Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505 (1986), and Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508 (Tex. 1995), fail to provide authority for his argument.  Accordingly, we hold that Yazdchi has waived his assertion that the affidavits are conclusory.  Tex. R. App. P. 38.1(i); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994) (holding appellate court has discretion to deem points of error waived due to inadequate briefing); Smith v. Comm’n for Lawyer Discipline, 42 S.W.3d 362, 363–64 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (overruling issue based on appellant’s failure to provide argument or authority in support of contention).

We overrule Yazdchi’s first issue.

          B.      Requests for Admissions and Yazdchi’s Subjective Statement

In his third and fourth issues, Yazdchi contends without elaboration that the trial court erred because he denied requests for admissions and because he stated in an affidavit that he had not practiced law without a license. We conclude Yazdchi has failed to adequately brief these issues and has, therefore, waived any error.  See Tex. R. App. P. 38.1(i); Fredonia State Bank, 881 S.W.2d at 284–85; Smith, 42 S.W.3d at 363–64.

We overrule Yazdchi’s third and fourth issues.

Conclusion

          We affirm the judgment of the trial court.

                                                                             Elsa Alcala

                                                                             Justice

Panel consists of Justices Jennings, Alcala, and Massengale.

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[1]           Crain v. Unauthorized Practice of Law Comm., 11 S.W.3d 328, 331 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).