Affirmed and Memorandum Opinion filed May 23, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-04-01158-CV
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ZOYA ENTERPRISES, INC., GHULAM HUSSAIN KHATANI AND KAREEM HUSSAIN KHATANI, Appellants
V.
SAMPRI INVESTMENTS, L.L.C., Appellee
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Cause No. 2002-40804
M E M O R A N D U M O P I N I O N
Appellants Zoya Enterprises, Inc., Ghulam Hussain Khatani, and Kareem Hussain Khatani (collectively, AZoya@), appeal the trial court=s grant of two summary judgments in favor of appellee, Sampri Investments, L.L.C. (ASampri@). We affirm the trial court=s judgment, and in doing that, we refuse to consider a supplemental clerk=s record filed over seven months after it was prepared and three weeks after the appeal=s submission date.
Background
The relevant facts are as follows. In August 2002, Sampri sued Zoya for nonpayment of a promissory note and guaranty in connection with the sale of a convenience store and its inventory. Zoya answered and later added counterclaims asserting fraud and deceptive trade practices against Sampri and its alleged partners, Aslam Virani and Priti Virani.[1] In December 2003, Sampri filed APlaintiff=s Partial Motion for Summary Judgment@ on the note and guaranty and APlaintiff=s No-Evidence Motion for Summary Judgment@ on Zoya=s counterclaims and affirmative defenses. Zoya filed one response to both motions.
The trial court sustained many of Sampri=s objections to exhibits attached to Zoya=s response and granted Sampri=s two motions for summary judgment. Sampri obtained a final judgment on November 2, 2004, after non-suiting its remaining claims. This appeal followed.
Sampri=s Motion to Strike and Dismiss the Appeal
As an initial matter, Sampri has filed with this Court a motion to strike portions of Zoya=s appellate brief and appendix and to dismiss Zoya=s appeal. First, Sampri contends that Zoya=s appellate brief includes references to documents not in the record and alleges facts without evidentiary support, and that Zoya=s appendix includes documents not contained in the clerk=s record. Sampri requests that we strike those documents and references from the brief and appendix. Second, Sampri argues that we should dismiss Zoya=s appeal because Zoya has failed to comply with the Texas Rules of Appellate Procedure. We deny Sampri=s request to dismiss Zoya=s appeal, but we hold that, to the extent Zoya references matters or relies upon documents not contained in the appellate record, we will not consider them.
Zoya=s Post-Submission Supplemental Clerk=s Record
Although we have denied Sampri=s motion to dismiss Zoya=s appeal, that is not the end of Zoya=s appellate procedural problems. We also must address Zoya=s failure to timely provide a complete clerk=s record for our consideration of its appeal. It was this failure that prompted Sampri=s motion to strike and dismiss the appeal, and it is this failure that directs our resolution of the appeal.
1. The Problem
When Zoya designated the clerk=s record on appeal, it generally requested, among other things, Sampri=s AMotion for Summary Judgment@ and the AResponse thereto.@ In the absence of filing dates, however, the clerk was unable to locate Zoya=s response, and so did not include it in the original record that was prepared. Most likely, the clerk did not include Zoya=s response because Zoya did not title it a Aresponse.@ Instead, it was titled ADefendants/Counter-Plaintiffs=, Zoya Enterprises, Inc. and Ghulan Hussain Khatani and Kareem Hussain Khatani, Motion for Summary Judgment and Partial Motion for Summary Judgment.@ (Italics ours). Apparently, Zoya left out the two key wordsCAResponse to@Cthat would have identified the document. The original clerk=s record was filed January 27, 2005, but only after this Court notified Zoya that it had failed to make arrangements to pay for the record. Zoya=s brief, initially due February 28, 2005, was filed on April 11, 2005, after Zoya received an extension of time to file the brief. Certainly, Zoya became aware at some point before filing its brief that its response was not in the record, but Zoya did not request a supplemental record until April 12, 2005, one day after Zoya filed its brief in which it represented that it had requested the supplemental record.[2]
Unable to cite to evidence attached to the response, Zoya prepared its brief with an appendix containing what appears to be a copy of its response along with copies of some of the exhibits to the response. Zoya cited to the appended documents and, in a footnote, informed this Court that it had requested a supplemental clerk=s record to include the response and exhibits. By the time Sampri filed its brief and the motion to strike and to dismiss Zoya=s appeal in May of 2005, the supplemental clerk=s record still was not filed. Save for a few conclusory arguments, Sampri=s brief dealt almost exclusively with the state of the appellate record when it filed its brief. Thus, Sampri argued that the record did not contain a fact issue to defeat Sampri=s summary judgment motions because no controverting evidence was in the record. During the summer and fall, the completed supplemental record remained at the clerk=s office, waiting for Zoya to pay for it.
On November 3, 2005, this Court notified the parties that the appeal would be submitted on the briefs in six weeksCon December 15, 2005. While working on the case in anticipation of the submission date, this Court asked the district court clerk if a supplemental record was prepared. The court clerk confirmed that Zoya had requested a supplemental record and that the clerk had prepared it in May of 2005, but that Zoya had not paid for it. Not having been paid for the record, the clerk did not forward it to this Court. We then drafted an opinion based on the record before us.
Three weeks after the submission date, but before issuance of the opinion, we received the supplemental clerk=s record containing Zoya=s response to Sampri=s motions for summary judgment. We asked the parties to brief the issue of the late-filed record. In its letter brief, Zoya urged us to consider the post-submission supplement, contending the problem was that AAppellants= counsel did not receive indication from the district clerk=s office that the supplemental record had not been prepared and forwarded to this Court until the latter part of 2005,@[3] and stating that the filing fee then was immediately forwarded. Zoya=s counsel also argued that Athis presents a highly unusual circumstance for which the Court should exercise its discretion to allow post-submission supplementation.@
Conversely, Sampri urged this Court not to consider the supplemental record. Sampri pointed out Zoya=s failure to promptly pay for the original record, its knowledge for months that the supplemental record was needed, its receipt of Sampri=s responsive brief and motion pointing out that the documents Zoya relied on were not in the record, and Zoya=s failure to take any action to timely procure the filing of the record prior to the submission date. Zoya had never declared that it could not afford to pay for the record, Sampri noted. Sampri also complained that it was unable to address the documents in the supplemental record because it was filed well after Sampri=s brief was due. Finally, Sampri argued that, although the clerk is responsible for timely filing the clerk=s record, this responsibility is conditioned on the appellant filing the notice and paying the clerk=s fee. See Tex. R. App. P. 35.3(a).
2. Our Resolution of the Problem
Having reviewed the record before us, we agree with Sampri that Zoya had many opportunities to supplement the record and received many reminders of the pendency of the appeal, which, in turn, should have reminded Zoya of the crucial supplemental record it must file.
! December 7, 2004. Zoya requests designation of the original clerk=s record on appeal, but does not provide sufficient information to enable the clerk to identify Zoya=s response to Sampri=s summary judgment motionsCthe most important document neededCwhich has a misleading title.
! January 27, 2005. The appellate record is filed. Omitted from the record is Zoya=s pivotal documentCits response, with accompanying exhibits, to the motions for summary judgment.
! January B April 2005. At some point, Zoya discovers that necessary documents and exhibits were omitted from the record. When Zoya files its brief it states it has already requested the supplemental record, although it does not actually send a letter requesting supplementation until the day after the brief is filed.
! May 16, 2005. Sampri=s AMotion to Strike a Portion of the Appellants [sic] Brief and Appendix and Dismiss Appeal@ is filed with this Court.
! May 19, 2005. Sampri=s appellate brief is filed with this Court.
! May 23, 2005. The clerk=s supplemental record is completed.
! May 2005 B December 31, 2005. The completed supplemental record sits untouched at the clerk=s office.
! November 3, 2005. This Court notifies Zoya and Sampri that the appeal will be submitted without argument on December 15, 2005. Zoya does not inquire about the status of the record or ensure that the supplemental clerk=s record has been filed.
! December 2005. This Court inquires with the district clerk about the omitted response and is told it has been completed since May 2005, but the clerk=s office has not been paid for preparing it.
! January 4, 2006. Zoya files the post-submission supplemental clerk=s record.
Although Zoya asks that we overlook the untimeliness of the post-submission supplemental record, the preceding time line convinces us that we should not.
First, Zoya has exhibited a complete indifference to the appeal. Zoya should have known in January, but certainly knew in April, that the record must be supplemented. Zoya was reminded in May that the record was incomplete and was informed in November that the case was to be submitted soon. At each of these points Zoya should have filed the supplemental record. Still, no action was taken to ensure that the record was properly supplemented.
Second, Zoya=s inaction and indifference have inconvenienced this Court and delayed its efforts to timely resolve the appeal. Our legislature has indicated its desire that we efficiently handle the appeals before us. Zoya=s lack of effort has impeded this process. We had considered the case as it appeared on the submission day and prepared an opinion, only to be required to spend additional time and effort to address the filing of the post-submission supplemental record.
Third, if we consider the supplemental record, we must afford Sampri an opportunity to respond to it, which will increase Sampri=s costs and further delay proceedings.
This is not a case of a simple oversight of tangential or insignificant information that could be easily overlooked. This is a case of continued neglect of information crucial to a proper appellate review. This neglect continued for over eleven months. The burden was on Zoya (1) to ensure that all the documents it needed for this Court to fully review the correctness of the summary judgment were in the record, and (2) to timely pay for the supplemental record once it realized necessary documents were excluded. See Enter. Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549B50 (Tex. 2004) (per curiam) (AAlthough Enterprise bears the burden to prove its summary judgment as a matter of law, on appeal Barrios bears the burden to bring forward the record of the summary judgment evidence to provide appellate courts with a basis to review his claim of harmful error.@); Tex. R. App. P. 35.3(a)(2). Zoya did not carry its burden.
As a result, we refuse to consider the documents contained in the post-submission supplemental record. Instead, we will consider Zoya=s issues on the record that was before us on the submission day.
Zoya=s Issues on Appeal
On appeal, Zoya contends that the trial court erred in granting the summary judgments in favor of Sampri because material issues of fact existed concerning Zoya=s claims of fraud and violations of the Deceptive Trade Practices-Consumer Protection Act (ADTPA@).[4] Zoya also contends that the trial court erred in striking a transcript of a tape recording allegedly between a representative of Sampri and Kareem Khatani. We will address each in turn.
1. Standards of Review
The movant for summary judgment has the burden to show there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). When deciding whether there is a disputed material fact issue precluding summary judgment, we must take as true all evidence favorable to the non‑movant. Nixon, 690 S.W.2d at 548B49. We must indulge every reasonable inference in favor of the non‑movant and resolve any doubts in its favor. Id. at 549. If the party opposing a summary judgment relies on an affirmative defense, that party must come forward with summary judgment evidence sufficient to raise an issue of fact on each element of the defense to avoid summary judgment. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984).
Additionally, after sufficient time for discovery has passed, a party may file a Ano evidence@ motion for summary judgment if there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i). When reviewing a no‑evidence summary judgment, we examine the evidence in the light most favorable to the non‑movant, disregarding all contrary evidence and inferences. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 146 (Tex. App.CHouston [14th Dist.] 2000, pet. denied). We sustain a no-evidence issue when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. King Ranch, 118 S.W.3d at 751. If the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact, a no‑evidence summary judgment is improper. Tex. R. Civ. P. 166a(i); King Ranch, 118 S.W.3d at 751. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. King Ranch, 118 S.W.3d at 751.
2. Fraud
In its motion for partial summary judgment, Sampri sought a judgment against Zoya as the maker of the promissory note and against Ghulam Khatani and Kareem Khatani as guarantors of the note. In its no-evidence motion for summary judgment, Sampri contended that Zoya could produce no evidence of any of the elements of fraud or fraudulent inducement. The elements of fraud are as follows: (1) that a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001); Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 524 (Tex. 1998).
On appeal, Zoya contends that it was entitled to avoid the contract forming the basis of Sampri=s motion for partial summary judgment and its no-evidence motion because of Zoya=s fraud, failure to disclose information, and illegal acts. Zoya also contends that it relied on Sampri=s allegedly fraudulent misrepresentations and would not have entered into the contract if it had known the true financial condition of the business. However, because we do not consider Zoya=s post-submission supplemental record, the record before us does not contain Zoya=s response or its attached exhibits. In the absence of any evidence supporting the fraud counterclaim, we hold that the trial court did not err in granting Sampri=s partial summary judgment and its no-evidence summary judgment on this basis.
3. Deceptive Trade Practices
Zoya also contends that it raised genuine issues of material fact on its counterclaim that Sampri violated the DTPA. Zoya asserts that Sampri and its representatives failed to disclose information, made misrepresentations, and engaged in illegal activities relating to the business. Zoya also contends the trial court failed to take Zoya=s favorable evidence as true and make all reasonable inferences in its favor, and instead discounted Zoya=s evidence and took Sampri=s evidence as true.
The DTPA prohibits A[f]alse, misleading, or deceptive acts or practices in the conduct of any trade or commerce . . . .@ Tex. Bus. & Com. Code ' 17.46(a). To prevail under the DTPA, a plaintiff must show that (1) the plaintiff was a consumer; (2) the defendant committed, among other things, a Alaundry‑list@ violation under DTPA section 17.46(b) or any unconscionable action or course of action; and (3) the wrongful act was a producing cause of the plaintiff=s economic or mental‑anguish damages. See id. '' 17.46(b), 17.50(a).[5] In its no-evidence motion for summary judgment, Sampri argued that Zoya could produce no evidence on the following elements: (1) Zoya is a consumer; (2) Sampri engaged in a false, misleading, or deceptive Alaundry-list@ act or engaged in unconscionable conduct; and (3) the act or conduct constituted a producing cause of Zoya=s damages.
Zoya contends that it raised fact issues on the elements of its DTPA counterclaims; again, however, because we do not consider Zoya=s response to Sampri=s motions or its attached exhibits, the record before us does not contain any evidence supporting such claims. We therefore hold that the trial court did not err in granting Sampri=s partial summary judgment and its no-evidence summary judgment on this basis.
4. Admissibility of Transcript
In its last issue, Zoya contends that the trial court erred in sustaining Sampri=s objections to a transcript and striking it from the record. Zoya alleges the transcript is of a taped conversation purportedly between Kareem Khatani and a representative of Sampri.
Because we do not consider the post-submission supplemental clerk=s record, neither the transcript nor an affidavit purportedly authenticating it is before us. We are therefore unable to assess Zoya=s complaint and so overrule this issue.
Conclusion
We overrule Zoya=s issues and affirm the trial court=s judgment.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed May 23, 2006.
Panel consists of Justices Fowler, Edelman, and Guzman.
[1] The Viranis are not parties to this appeal.
[2] Before Zoya made its request, Sampri sought and obtained a supplemental clerk=s record, which was filed on March 24, 2005. Thus, the supplemental clerk=s record Zoya requested is designated ASecond Supplemental Clerk=s Record@ in our appellate record. However, for purposes of this opinion, we will refer to it as the Asupplemental record@ or Apost-submission supplemental record.@
[3] Interestingly, as to this representation, Zoya states that Athis notice will be supplemented to the Court once located by our office,@ but no such supplementation has ever been made.
[4] See Tex. Bus. & Com. Code '' 17.46, 17.50. Although Zoya=s brief does not clearly set out whether its specific arguments are directed to Sampri=s motion for partial summary judgment or the no-evidence motion for summary judgment, we will consider them as counterclaims or affirmative defenses as appropriate.
[5] Zoya also argues that it is a consumer, citing this Court=s recent opinion in Jabri v. Alsayyed, 145 S.W.3d 660, 671 (Tex. App.CHouston [14th Dist.] 2004, no pet.), in which we held that the lessee of a convenience store was a consumer for purposes of the DTPA. We need not decide whether Zoya is a consumer for purposes of the DTPA, however, because the record contains no evidence that Sampri engaged in any of the alleged deceptive acts or practices.