Kohannim v. Katoli

• Decision Date: 24 July 2013
• Docket Number: No. 08–11–00155–CV.,08–11–00155–CV.
• Citation: 440 S.W.3d 798
• Parties: Yaghoub “Jacob” KOHANNIM, Appellant, v. Parvaneh KATOLI, Appellee.
• Court: Texas Court of Appeals

440 S.W.3d 798

Yaghoub “Jacob” KOHANNIM, Appellant

v.Parvaneh KATOLI, Appellee.

No. 08–11–00155–CV.

Court of Appeals of Texas, El Paso.

July 24, 2013.

John H. Cayce Jr., Kelly Hart & Hallman LLP, Fort Worth, for Appellant.

Grey Pierson, Pierson Behr, Arlington, for Appellee.

Before McCLURE, C.J., RIVERA, and ANTCLIFF, not participating, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice.

This appeal arises from a money judgment awarded in post-divorce litigation between Parvaneh Katoli and her former husband's business partner, Yaghoub “Jacob” Kohannim. We affirm in part and reverse in parst.

FACTUAL SUMMARY

In 1985, Jacob Kohannim and Mansour “Mike” Khosravikatoli formed a Texas corporation, Santores, Inc., for the purpose of owning and operating a restaurant known as Marsala in Arlington, Texas. The restaurant was located in a small strip shopping center. Mike was married to Parvaneh Katoli¹ when he and Jacob formed Santores and opened Marsala. Jacob and Mike were equal shareholders in Santores.

In 1996, Jacob and Mike decided to purchase the real property on which Marsala was located together with the buildings, equipment, and fixtures located on the property. On May 2, 1996, Jacob and Mike formed a new company, 360 Center LLC to acquire the property. Pursuant to the Articles of Organization, Jacob and Mike each owned 50% of 360 Center and were the managers. Jacob testified at trial that Mike had knowledge of 360 Center's activities but Jacob managed the company alone.

By 2001, Mike was experiencing significant personal difficulties which included irrational behavior and severe abuse of alcohol and cocaine. As a result of these difficulties, Mike lacked the capacity to participate in the management of the company. He also had serious marital problems and in July of 2001, Parvaneh and Mike separated. After learning that Mike and Parvaneh would likely divorce, Jacob hired an attorney to draft a “Members Agreement” for Mike and Jacob, as the interest-holders of 360 Center. Mike and Jacob signed the Members Agreement on December 6, 2001. It restricted Mike and Jacob from transferring their interest in 360 Center without first giving fifteen days' notice to the Company and other interest-holder. Upon receiving notice, the other interest-holder had ten days to approve the transfer. If the transfer was approved, the other interest-holder had a preferential right to purchase all or any portion of the offered interest at the purchase price and on the terms specified in the transfer notice. The Members Agreement also contained provisions applicable to transfer of an interestholder's interest as a result of divorce. In the event an interest-holder's interest was transferred to a spouse in the context of divorce proceedings, the Company and the other interest-holder had the right to purchase that interest. The Members Agreement also named Jacob and Mike the managers of 360 Center for life.

Parvaneh filed for divorce on February 24, 2003. On May 23, 2003, the 322nd District Court in Tarrant County entered agreed temporary orders prohibiting Mike and Parvaneh from transferring assets. Jacob knew that the divorce petition had been filed and that the court had issued an order prohibiting Mike from transferring assets. In June or July of 2003, Jacob agreed to purchase 5% of Mike's interest in 360 Center for $16,500 in six installments.

Jacob made the first payment on July 2, 2003 and the final payment on December 31, 2003. The 322nd District Court signed the final decree of divorce on March 17, 2005. With regard to Mike's purported transfer of 5% interest in 360 Center to Jacob, the decree provides:

The Court further finds that Respondent attempted to transfer his interest in community property in violation of a court ordered injunction issued by this Court, and as a result of such violation, any such purported transfer of interest is void for all purposes as it pertains to the parties to this suit and matters over which this Court has jurisdiction and power.

The district court awarded Parvaneh “[o]ne hundred percent (100%) of the husband's interest in 360 Center, LLC, a Texas limited liability company, which interest is equivalent to a fifty percent (50%) interest in such company.” The decree required Mike to execute and deliver to Parvaneh's attorney a stock transfer certificate and/or assignment of interest.

Before the divorce decree was entered, Jacob closed one of the 360 Center bank accounts and a check for $160,000 made payable to 360 Center LLC was issued on February 26, 2005. Over a month later, and after the final decree had been entered, Jacob endorsed the check and deposited it into Marsala's bank account. The financial records of 360 Center identify the $160,000 transaction as a “payment to owner.”

On April 11, 2005, Parvaneh's attorney forwarded the pertinent pages of the divorce decree to Jacob's attorney along a blank stock power executed by Mike. In the same letter, Parvaneh's attorney demanded a meeting with Jacob for an immediate accounting and to discuss ongoing management of the company. The letter specifically raised the issue about the $160,000 payment to Jacob. The following month, Jacob advised Parvaneh that he intended to start the process of determining the value of 360 Center pursuant to Article III of the Members Agreement.

It is undisputed that Jacob refused to consent to Parvaneh becoming a member of 360 Center. On December 21, 2005, Jacob's attorneys informed Parvaneh by letter that she was not a member unless Jacob consented and she therefore had no right to vote at an upcoming meeting on the issue of Jacob's compensation. The letter further stated that Jacob would vote his 55% interest in favor of a $50,000 payment to him as compensation for his services in 2005 and a check would subsequently be issued to him. Jacob received the $50,000 payment over Parvaneh's protests.

On May 15, 2006, Parvaneh filed suit against Jacob and 360 Center. She sought a declaration of her rights with respect to 360 Center and the Members Agreement. Her petition included claims based on constructive fraud, breach of fiduciary duty, oppression, waste and misappropriation of assets, gross mismanagement and abuse of control, and unjust enrichment. Parvaneh also sought a declaration with respect to the validity of the Members Agreement. More specifically, she sought declarations that the Members Agreement was not valid, it was not binding on her, the purported transfer from Mike to Jacob of a 5% interest in 360 Center was void, and she owns 50% of 360 Center. Parvaneh also requested that a receiver be appointed to conserve the properties, assets, and rights of 360 Center. Finally, Parvaneh sought actual damages, punitive damages, and attorney's fees. Jacob generally denied Parvaneh's claims and asserted counterclaims against her. In addition to seeking a declaration that Parvaneh was bound by the Members Agreement, Jacob sought damages for breach of that agreement and for specific performance.

The trial court appointed a receiver for 360 Center and ordered the receiver to sell its assets. The receiver placed a value of $1,250,000 on 360 Center's assets but recommended that the trial court approve Jacob's offer to purchase the assets for $1,000,000.13. The trial court rejected Jacob's offer because the appraisal did not include a cell phone tower and billboard tower on the property. The court ordered the receiver to list the property and subsequently approved a sale for $1,300,100.

The parties tried the case to the bench for four days in June 2010. In addition to testimony, numerous and voluminous exhibits were admitted. The trial judge did not immediately rule at the conclusion of the trial and took the case under advisement. Then on December 9, 2010, the court issued a letter ruling:

1) The declaratory relief requested by Parveneh [sic] Katoli is granted.

2) The $54,500 judgment requested by the Receiver is granted.

3) All relief requested by Yaghoub ‘Jacob’ Kohannim is denied.

4) All relief requested by Mansour ‘Mike’ Khosravikatoli is denied.

The court requested that Parvaneh's attorney submit proof of attorney's fees and directed the receiver to furnish the amount of funds on hand to the court by December 13, 2010. On February 10, 2011, the court sent a second letter to the parties setting forth the court's ruling in more detail.

The trial court entered a final judgment on February 16, 2011. The court found that: (1) 360 Center has $1,445,969.26 in assets, consisting of $1,393,469.26 in cash held by the receiver and a rent judgment for $52,500; and (2) Jacob and Parvaneh each hold a 50% beneficial interest in the assets ($722,984.63 each). The court allocated the assets as follows: (1) $670,484.63 in cash and the $52,500 rent judgment to Parvaneh; and (2) $722,984.63 in cash to Jacob. Based upon the court's findings that Parvaneh had been damaged by Jacob's wrongful acts and omissions and that Jacob had acted with malice and intent to defraud, the court determined that the value of Parvaneh's interest in 360 Center would have been $1,141,745.69 had it not been for Jacob's wrongful acts and omissions. The court awarded Parvaneh the difference in value, $418,761.06. Additionally, the court awarded to Parvaneh punitive damages in the sum of $150,000 and attorney's fees of $165,533.93, plus conditional awards in the event of appeal. The judgment gave Jacob a credit of $2,400 previously deposited into the trust account of Parvaneh's attorneys.

The receiver, in accordance with the final judgment, transferred a rent judgment to Parvaneh and deposited $670,484.63 into the registry of the court for her benefit. See Yaghoub Kohannim v. Parvaneh Katoli, No. 08–11–00155–CV, 2011 WL 2586779 at *2 (Tex.App.-El Paso June 29, 2011, order) (memorandum opinion). The receiver also deposited the sum of $720,059.88 into the registry for the benefit of Jacob. Id. After filing notice of appeal, Jacob filed a notice of deposit in lieu of supersedeas bond, stating...