No B9-CV. In The Court Of Appeals COURT OF APPEALS For The Fifth District of Texas,-- JUN \,..4. GREG CUNNIGHAM, Appellant,

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1 No B9-CV FILED IN In The Court Of Appeals COURT OF APPEALS For The Fifth District of Texas,-- JUN \,..4 Dallas Cormty, Texas ~-- LISA MATZ CLERK, 5th DISTRICT GREG CUNNIGHAM, Appellant, v. DIVIDEND INVESTMENT,j.V., FAROOQ SELOD, AMANULLA KHAN, AND BOBBY ANGUN, Appellee. APPEAL FROM THE]UDGMENT OF COUNTY COURT AT LAW No.2 OF DALlAS, COUNTY, TEXAS BRIEF FOR APPEl.I.EE ATrORNEYS FOR APPELLEES FRANK D. CHANDLER LINZ & CHANDLER, P.C. 1,0() Katy Building 701 Commerce Street Dallas, Texas , / ,8 CHERYL D. SMITH IA W OFFICE OF CHERYL SMITH ~il1 Main Street Suite 300 Fort Worth, Texas ,5 June 15, 2012

2 .. LIST OF PARTIES AND COUNSEL Appellant: Mr. Greg Cunningham Preston Road, Suite 1 050E Dallas, Texas Appellant's Counsel: Mr. Timothy W. Sorenson State Bar No Preston Road, Suite 102, PMB 116 Dallas, Texas Appellee: Dividend Investment, J. V th A venue, Suite 506 Fort Worth, Texas Mr. Farooq Selod 800 8th A venue, Suite 506 Fort Worth, Texas Dr. Amanulla Khan 4201 Medical Center Drive, Suite 180 McKinney, Texas Mr. Bobby Anglin 6717 Talmadge Dallas, Texas Appellee Counsel for: Dividend Investment, Mr. Farooq Selod and Dr. Amanulla Khan: Appellee Counsel for: Mr. Bobby Anglin: Ms. Cheryl D. Smith Attorney at Law 314 Main Street, Suite 300 Fort Worth, Texas Mr. Frank D. Chandler 400 Katy Building 701 Commerce Street Dallas, Texas 75202

3 Trial Court: Honorable King Fifer County Court At Law No Commerce Street, 5th Floor Dallas County, Texas

4 REQUEST FOR ORAL ARGUMENT Appellees do not believe that oral arguments by the parties will be an aid to the Court in resolving the issues presented by Appellant herein, however should the Court grant Appellant's request for oral argument, Appellees request that they be allowed oral argument to respond. 111

5 TABLE OF CONTENTS LIST OF PARTIES AND COUNSEL... 1 REQUEST FOR ORAL ARGUMENT... iii TABLE OF CONTENTS... iv TABLE OF CITATIONS... vi STATEMENT OF THE ISSUES... 1 STATEMENTOFTHECASE Course of Proceedings and Disposition in Court Below Statement of Facts... 5 SUMMARY OF THE ARGUMENT... 7 ARGUMENT... 7 ISSUE NO. 1 RESTATED: APPELLANT HAS FAILED TO PRESERVE HIS COMPLAINT AS TO WHETHER THE TRIAL COURT ERRED BY HEARING APPELLEES' OBJECTIONS TO APPELLANT'S SUMMARY JUDGMENT AFFIDAVIT ON THE DAY OF SUMMARY JUDGMENT HEARING WHEN APPELLANT FAILED TO REQUEST A CONTINUANCE TO RESPOND TO THE OBJECTIONS. 7 ISSUE NO.2 RESTATED: THERE WAS NO ERROR IN THE TRIAL COURT'S SUSTAINING THE APPELLEES' OBJECTIONS TO APPELLANT'S SUMMARY JUDGMENT AFFIDAVIT. (APPELLANT'S ISSUES 2, 3, 4 ARE COMBINED).. 9 ISSUE NO.3 RESTATED: APPELLANT FAILED TO PROVIDE THE TRIAL COURT WITH EVIDENCE TO SUPPORT EACH ELEMENT OF HIS CLAIM FOR BREACH OF CONTRACT AND CONVERSION.. 12 lv

6 CONCLUSION CERTIFICATE OF SERVICE v

7 TABLE OF CITATIONS CASES Page Brownlee v Brownlee, 665 S.W.2d at 112 (Tex. 984) Cire v. Cummings, 134 S.W.3d 835, (Tex. 2004)... 9 Gerstacker v. Blum Consulting Eng'rs, Inc., 884 S.W.2d 845, 848 (Tex. App.-Dallas 1994, writ denied) Owens v. Comerica Bank, 229 S.W.3d 544, 548 (Tex. App.-Dallas 2007, no pet.)... 9 Trusty v. Strayhorn, 87 S.W.3rd, 756, 763 (Tex. App.-Texarkana [6th Dist] 2002)... 8 Webster v. Allstate Ins. Co., 833 S.W.2d 747, (Tex. App.- Houston [1st Dist.] 1992, no writ)... 8 RULES AND STATUTES Vl

8 STATEMENT OF THE ISSUES ISSUE N0.1 APPELLANT HAS FAILED TO PRESERVE HIS COMPLAINT AS TO WHETHER THE TRIAL COURT ERRED BY HEARING APPELLEES' OBJECTIONS TO APPELLANT'S SUMMARY JUDGMENT AFFIDAVIT ON THE DAY OF SUMMARY JUDGMENT HEARING WHEN APPELLANT FAILED TO REQUEST A CONTINUANCE TO RESPOND TO THE OBJECTIONS. ISSUE NO.2: THERE WAS NO ERROR IN THE TRIAL COURT'S SUSTAINING THE APPELLEES' OBJECTIONS TO APPELLANT'S SUMMARY JUDGMENT AFFIDAVIT. (APPELLANT'S ISSUES 2, 3, 4 ARE COMBINED) ISSUE NO.3: APPELLANT FAILED TO PROVIDE THE TRIAL COURT WITH EVIDENCE TO SUPPORT EACH ELEMENT OF HIS CLAIM FOR BREACH OF CONTRACT AND CONVERSION. 1

9 STATEMENT OF THE CASE 1. Course of Proceedings and Disposition in Court Below. On April 7, 2010, Appellant, Gregory Cunningham along with a company allegedly owned by Appellant, known as CFB-5, Inc. d/b/a U.S. Net, filed an Original Petition in the County Court At Law No. 3 of Dallas County under cause number ee-l c, seeking recovery from Appellee Anglin for damages he allegedly suffered for breach of contract with regards to a commercial lease agreement between the parties and an alleged conversion of Appellant's equipment contained in the leased premises. (Clerk's Record [C.R.] Pgs 9-11). On April 26, 2010 the Appellant filed a Motion to Consolidate seeking to consolidate the above referenced action with an action pending in the County Court At Law No. 2 of Dallas County under cause number cc b in which Appellee Anglin was seeking recovery for unpaid rents. (C.R. pgs ). No action was taken on this motion to consolidate. 15). On June 3, 2010, Appellee Anglin filed his original answer. (C.R. pgs. 14- On June 4, 2010, an Order was entered transferring case number ee-l C to Dallas County Court At Law No.2 by Dallas County Court at Law No. 2

10 3 and assigning it case No. cc cthe Dallas County District Court. (C.R. pg. 16) On March 18, 2011, Appellant amended his original petition dropping CFB- 5, Inc. d/b/a U.S. Net as plaintiffs and adding Appellees Dividend Investment, Selod and Khan again seeking damages for breach of contract, conversion and exemplary damages (C.R. pgs ). On April 1, 2011, Appellees Dividend Investments, Selod and Khan filed their general denial in this case. ( C.R. pg ). On September 9, 2011 after Appellant's deposition and his admission that he did not own the equipment which is the basis of Appellant's suit, Appellees Dividend Investment, Selod and Khan filed an amended answer and counter-claim seeking damages for filing a frivolous lawsuit (C.R. pg 50-51). On or about September 19, 2011, Appellee Anglin filed a Motion for summary judgment seeking both a traditional and a no evidence motion for summary judgment (C.R. pgs ). On September 28, 2011, Appellees Dividend Investment, Selod and Khan filed their motion for summary judgment. (C.R. pgs ). 3

11 ). On October 13, 2011, Appellant refilled its motion to consolidate (C.R. pgs. On October 19, Appellant filed his response to Appellees motions for summary judgment (C.R. pgs ). In support of Appellant's response, the Appellant filed an affidavit of his counsel (C.R. pgs ), Appellants affidavit (C.R. pgs ) and Plaintiffs Request for Judicial Notice (C.R. pgs ). On October 26, 2011, Appellees filed objections to Appellant's response to the Appellees' motions for summary judgment (C.R. pgs ). On November 30, 2011 the Honorable King Fifer issued his ruling granting Appellee Anglin's traditional and no evidence motion for summary judgment and granting Appellees Dividend Investment, Selod and Khans, traditional and no evidence motion for summary judgment, denying sanctions and sustaining the objections to Appellant's summary judgment evidence. (C.R. pg. 245) On or about December 19, 2011, an Order setting forth the Court's ruling was entered by the Court. (C.R. pg ). On January 10, 2012 it appears that a Notice of Appeal was filed by Appellant. (C.R. pg 261). 4

12 2. Statement of Facts. Appellee generally has no objection to the recitation of facts set forth in the Appellant's Brief except for the following points: On September 10, 2009, Appellee gave Appellant and other tenants notice of his intent to raise the tenant's rents and obtain new commercial leases from each tenant including Appellant. On or about October 8, 2009, Appellee Anglin again gave Appellant, both orally and in writing, notice of Appellee Anglin's, intent to raise the rent on the leasehold beginning December 1, Anglin provided Appellant with the amount of the increase and a new lease agreement which the Appellant did not execute. On January 18, 2010, Appellee Anglin again attempted to negotiate a new lease with Appellant. On or about March 12, 201 0, Appellee Anglin after not receiving the March 2010 rent payment, gave Appellant written notice to vacate the premises. On or about March 19, 2010, Appellant Anglin filed a suit for forcible entry and detainer with the Justice of the Peace Court, Precinct 2, Place 1 of Dallas County, Texas. 5

13 On or about March 30, 2010, Appellee Anglin took possession of the rental premises and had a locksmith replace the cylinder installed in the front door of the premises, which was found to be missing. On or about April 1, 2010, eviction was granted by the Justice of the Peace, Precinct 2, Place 1 of Dallas County, Texas. 6

14 SUMMARY OF ARGUMENT There was no error in this case. Appellant failed to preserve his complaint as to whether the Trial Court erred in hearing Appellees' objections to Appellant's summary judgment evidence because he did not request a continuance of the summary judgment hearing to respond to Appellees' objections. Appellant's affidavit in support of his claim for conversion was based on hearsay statements and legal conclusions and therefore no evidence was given by the Appellant to his claim for conversion. Appellant also failed to offer evidence of a breach of contract or conversion and admits in his own affidavit that he did not pay the rent due. ARGUMENT ISSUE NO.1 APPELLANT FAILED TO PRESERVE HIS COMPLAINT AS TO WHETHER THE TRIAL COURT ERRED BY HEARING APPELLEES' OBJECTIONS TO APPELLANT'S SUMMARY JUDGMENT AFFIDAVIT ON THE DAY OF SUMMARY JUDGMENT HEARING WHEN APPELLANT FAILED TO REQUEST A CONTINUANCE TO RESPOND TO THE OBJECTIONS. The summary judgment hearing was held on October 26, 2011 at which time Appellees filed objections to Appellant's affidavit on various grounds. At no time did Appellant request additional time to respond to the objections nor did 7

15 .. Appellant over the next two months file any motions with the Court requesting a rehearing or an opportunity to respond to Appellees' objections to the evidence submitted by Appellant in response to the Appellees' motions for summary judgment. Appellant cites Trusty v. Strayhorn, 87 S.W.3rd, 756, 763 (Tex. App. Texarkana [6th Dist] 2002) to support his argument that the court erred by considering Appellees' objections without reasonable notice to him. In Trusty the Court relies on and cites Webster v. Allstate Ins. Co., 833 S.W.2d 747, (Tex. App.-Houston [1st Dist.] 1992, no writ). In Webster the appellee objected to the appellants' summary judgment affidavits, and the trial court sustained the objections and granted summary judgment on the same day. Appellant complained that the trial court should have granted an opportunity for the appellant to amend their affidavit but the court of appeals held that since appellant failed to request a continuance, they waived any error. Webster at 750. Not only did Appellant in this case fail to request a continuance at the time of the hearing, he also failed for the next two months to make any motion with the court to amend his affidavits or to reconsider its rulings with regard to the objections filed by the Appellees. Therefore, Appellant has waived this issue. 8

16 ISSUE NO.2 THERE WAS NO ERROR IN THE TRIAL COURT'S SUSTAINING THE APPELLEES' OBJECTIONS TO APPELLANT'S SUMMARY JUDGMENT AFFIDAVIT. (APPELLANT'S ISSUES 2, 3, 4 ARE COMBINED) A Trial Court's ruling sustaining an objection to summary judgment evidence is reviewed for abuse of discretion. Owens v. Comerica Bank, 229 S.W.3d 544, 548 (Tex. App.-Dallas 2007, no pet.). A trial court abuses its discretion if it acts arbitrarily and unreasonably. Cire v. Cummings, 134 S.W.3d 835, (Tex. 2004). This Court should only reverse a judgment on the ground of improperly excluded evidence if the error probably caused the rendition of an improper judgment. Owens, 229 S.W.3d at 548. Errors in the exclusion of evidence are generally not reversible unless the whole case turned on the challenged evidence. Id. Appellant complains that Appellees failed to object to any specific statements in its affidavit, therefore the objections cannot be reviewed by this Court. This argument it without foundation or basis in fact, Appellees filed specific objections to specific statements made by Appellant in his affidavit. (CR ). Appellant then contradicts this argument when he identifies the specific statements with the objections which were sustained by the Trial Court in the very next paragraph of his brief. (See, Appellant's brief page 9). Appellant fails to offer this Court any argument or legal authority to support his position that the 9

17 Trial Court erred in sustaining the objections to the summary judgment affidavit filed by Appellant. Appellant simply argues that the statements were made on personal knowledge. Appellant argues the statements are not hearsay but offers nothing but the definition of hearsay to support this argument. Appellant argues that since his attorney filed an affidavit regarding "legal ownership" of the equipment, that Appellant's statement that he had obtained "legal ownership" should not be considered objectionable. However, once again Appellant has failed to provide the Court with any guidance as to why the Trial Court should have not sustained the objections. Appellee made the following objections to Appellants affidavit: (CR ) Statements that Cunningham was storing equipment worth $85, 000. Statements that Cunningham had been offered and accepted the sum of $85, 000 for equipment. Statements that Greg Cunningham legal possession of equipment that had a fair market value of $85, 000. Statements that Greg Cunningham had obtained personal ownership as the sole surviving Director and shareholder of US. Metro Line Services, Inc. Statements that USM only asset was the equipment. 10

18 A. Statements are not readily controvertible and constitute hearsay. B. Statements call for a legal conclusion of what "legal possession" constituted. C. Statements are conclusory as what Anglin thought or would not accept payments. The Trial Court sustained the above objection in its ruling of November 30, 2011 (CR 245) and its order of December 19, (CR 249). The Texas Supreme Court has made it clear that conclusory statements or legal conclusion within an affidavit fail to meet his burden on a no evidence motion for summary judgment because they do not set forth facts as would be admissible in evidence. Brownlee v. Brownlee, 665 S.W.2d at 112 (Tex. 1984). Affidavits are insufficient unless the statements in it are direct and unequivocal and perjury can be assigned to them. Gerstacker v. Blum Consulting Eng'rs, Inc., 884 S.W. 2d 845, 848 (Tex. App.-Dallas 1994, writ denied) (citing Brownlee, 665 S.W. 2d at 112). Therefore, there is no indication that the Trial Court abused its discretion when it granted Appellees' objections on the summary judgment evidence. 11

19 ISSUE NO.3 APPELLANT FAILED TO PROVIDE THE TRIAL COURT WITH EVIDENCE TO SUPPORT EACH ELEMENT OF HIS CLAIM FOR BREACH OF CONTRACT AND CONVERSION. Appellant argues that Appellee breached the parties' lease agreement by demanding moneys not due, but simply states in his affidavit in response to Appellees' Motions for Summary Judgment that "my tender was returned to me and a sum of $4,200 was then demanded as rent". Appellant's affidavit does not offer the Court any other evidence as to what actions constituted a breach of the parties lease agreement. In fact, Appellant admits in his affidavit that "I did not tender this amount or the amount that was legally due under the lease on March 1, 2010" (CR- 224 & Appellant's brief page 10). Appellant admits that he breached the lease by non-payment. As for the Appellant's deposition testimony that he did not own the equipment he alleged was converted by Appellees, the fact that he later changed his testimony after his deposition does not create a fact issue when the objections to his affidavit were sustained. The Appellant provided no other evidence to 12

20 support his claim of conversion other than hearsay statements, therefore the Trial Court did not abuse its discretion in granting summary judgment on this issue. CONCLUSION Appellant has failed to come forth with any legal arguments to support its claim that the Trial Court abused its discretion in sustaining Appellees' objection to the summary judgment evidence. Neither has Appellant offered any evidence to support its claim for breach of contract or conversion of property. Therefore the Trial Court's granting of summary judgment should be affirmed. In consideration of the foregoing, Appellee asks that the Court affirm the Judgment entered by the County Court on December 19, 2011 and that they be granted such other and further relief as the Court deems just. Respectfully submitted, LINZ & CHANDLER, P.C. Attorneys for Appellee Anglin By: /s/ Frank D. Chandler Frank D. Chandler State Bar No Michael F. Linz State Bar No Katy Building 701 Commerce Street Dallas, Texas Phone 214/

21 LAW OFFICES OF CHERL Y D. SMITH Attorneys for Appellees Dividend Investment, Selod & Khan By: /s/ Cheryl D. Smith Cheryl D. Smith State Bar No CERTIFICATE OF SERVICE 314 Main Street, Suite 300 Fort Worth, Texas Phone: Fax: I certify that on this day a true and correct copy of the foregoing Appellee's briefwas served on the attorney identified below, counsel of record for Appellant, by certified mail, return receipt requested. Signed this 15th day of June Timothy W. Sorenson Preston Road Suite 102, PMB #116 Dallas, Texas Is/ Frank D. Chandler Frank D. Chandler 14