Preview
FILED
DALLAS COUNTY
11/1 1/2019 4:04 PM
FELICIA PITRE
DISTRICT CLERK
Margaret Thomas
CAUSE NO. DC-18-00241
BEHROOZ KHADEMAZAD d/b/a GRAND § IN THE DISTRICT COURT OF
PRAIRIE FAMILY DENTAL, §
§
Plaintiff, §
§ DALLAS COUNTY, TEXAS
V. §
§
SEAN GHARAVI, §
§
Defendant. § lOISt JUDICIAL DISTRICT
REQUEST FOR ADDITIONAL AND AMENDED
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Defendant, Sean Gharavi (“Gharavi”), Without waiving any of the grounds set forth in
prior or future filings} submits this Request for Additional and Amended Findings of Fact and
Conclusions of Law pursuant t0 Texas Rule 0f Civil Procedure 298, and requests the Court enter
the Additional and Amended Findings of Fact and Conclusions 0f Law attached as Exhibit A.
all 0f his grounds for new trial and, alternatively, for modification 0f the judgment in motions
1
Gharavi Will assert
t0 be filed under Texas Rule 0f Civil Procedure 329b at the appropriate time. This filing is made subject t0, and
Without waiver 0f the grounds t0 be stated in those motions. It is Gharavi’s position that the current judgment and
the Court’s related findings and conclusions are erroneous and that Gharavi is entitled to a take-nothing judgment in
his favor. Thus, GharaVi does not agree to a modified judgment correcting the errors noted herein. See First
National Bank v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989).
REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 1 OF 16
CONCLUSIONS OF LAW
Respectfully submitted,
/S/Jason P. Bloom
Jason P. Bloom
Bar N0. 2404551 1
State
Jason.Bloom@haynesb00ne.com
Ryan Paulsen
State Bar N0. 24060397
Ryan.Paulsen@haynesboone.com
Christopher R. Knight
State Bar N0. 24097945
Chris.Knight@haynesb00ne.com
HAYNES AND BOONE, LLP
2323 Victory Avenue, Suite 700
Dallas, Texas 75219
Telephone: 2 14-65 1 -5000
Facsimile: 2 14-65 1 -5940
Timothy E. Baker
Texas Bar No. 24050247
1205 S. Greenville Avenue
Allen Texas 75002
Telephone: (214) 727-4956
Facsimile: (214) 506-6015
tbaker@timbaker.com
ATTORNEYS FOR DEFENDANT
SEAN GHARAVI
REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 2 OF 16
CONCLUSIONS OF LAW
CERTIFICATE OF SERVICE
The undersigned hereby certifies that 0n November 11, 2019, a true and correct copy 0f
the foregoing document was sent Via email and/or eservice, in accordance With the Texas Rules
0f Civil Procedure to the following counsel 0f record:
William L. Siegel
Cowles & Thompson, P.C.
901 Main Street, Suite 3900
Dallas, Texas 75202
Bsiegel@cowlesth0mps0n.com
/S/Jason P. Bloom
Jason P. Bloom
REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 3 OF 16
CONCLUSIONS OF LAW
EXHIBIT A
REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 4 OF 16
CONCLUSIONS OF LAW
CAUSE NO. DC-18-00241
BEHROOZ KHADEMAZAD d/b/a GRAND § IN THE DISTRICT COURT OF
PRAIRIE FAMILY DENTAL, §
§
Plaintiff, §
§ DALLAS COUNTY, TEXAS
V. §
§
SEAN GHARAVI, §
§
Defendant. § lOISt JUDICIAL DISTRICT
ADDITIONAL AND AMENDED
FINDINGS OF FACT AND CONCLUSIONS OF LAW
After considering the evidence at the bench trial in this matter and the legal arguments of
both parties, the Court issues the following Findings of Fact and Conclusions 0f Law:
I. FINDINGS OF FACT
1. Plaintiff Behrooz Khademazad (“Khademazad”) is a dentist who practices
dentistry in Grand Prairie, Texas.
2. Khademazad has exclusively practiced his profession as a dentist in 0r near Grand
Prairie, Texas. Most 0f Khademazad’s patients either reside and/or work in or near Grand
Prairie, Texas, and most of Khademazad’s referrals are based 0n the fact that he practices in 0r
near Grand Prairie, Texas.
3. Defendant Sean Gharavi (“Gharavi”) is the sole owner of an online marketing
company, Aidris, Inc. (“Aidris”).
4. Khademazad retained Aidris to perform online marketing services on his behalf.
5. GharaVi has never received dental services from Khademazad.
REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 5 OF 16
CONCLUSIONS OF LAW
6. In December 2015, Aidris obtained an arbitration decision against Khademazad.
The decision was recorded as a judgment in July 2016 by the County Court of Law No. 1 in
Tarrant County for $89,850.20 with post-judgment interest accruing at 5% from the date of
judgment.
7. In February 2017, Gharavi submitted the following post to Yelp (the “Yelp
Post”):
This is a review for the Grand Prairie Family Dental and Dr. Khademazad. Dr.
Khademazad is not to be trusted. Grand Prairie Family Dental and Dr.
Khademazad refused to pay money owed since 10/20/2010. Even after winning a
major court judgment in 06/16, we still haven [sp] not received a penny of what is
owed. Grand Prairie Family Dental and Dr. Khademazad can’t even be trusted
with a court order !! Why would you trust him with your health?!
8. A Yelp marketing salesperson contacted Khademazad regarding the Yelp Post,
and Yelp ultimately rejected the submission of the Yelp Post.
9. Gharavi submitted the Yelp Post, not as a customer reviewing Khademazad, but
in an attempt to collect the unpaid judgment owed by Khademazad to Aidris.
10. Gharavi did not know the Yelp Post, or any statement therein, was false, nor did
he act with reckless disregard for its falsity or fail to ascertain the truth or use ordinary care in
submitting the Yelp Post.
11. Gharavi did not act willfully or with malice in submitting the Yelp Post.
12. Gharavi did not act with an extreme degree of risk in submitting the Yelp Post
considering the probability and magnitude of any potential harm to others from the Yelp Post.
13. Gharavi did not have an actual, subjective awareness of any risk from submitting
the Yelp Post, nor did he proceed with conscious indifference to the rights, safety, or welfare of
others in submitting the Yelp Post.
REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 6 OF 16
CONCLUSIONS OF LAW
14. Gharavi did not intend, know, or have reason to know, that the Yelp Post would
harm Khademazad in his profession as a dentist.
15. Gharavi did not owe Khademazad a duty of care.
16. Gharavi did not breach a duty of care to Khademazad by submitting the Yelp
Post.
17. The statement that Aidris won a court judgment against Khademazad in 2016 is
true.
18. At the time of the Yelp Post, the statement that Aidris had not recovered on the
judgment owed by Khademazad was true.
19. The statements regarding the trustworthiness of Khademazad and Grand Prairie
Family Dental are statements of opinion.
20. The gist of the Yelp post is that Grand Prairie Family Dental and Khademazad
had failed to pay a money judgment.
21. The statements regarding the trustworthiness of Khademazad and Grand Prairie
Family Dental are statements of rhetorical hyperbole.
22. No statement in the Yelp Post is false, misleading, or defamatory, nor can the
Yelp Post as a whole be perceived by an average reader as false, misleading, or defamatory.
23. The Yelp Post would not have a different effect on the mind of an average reader
than a true statement would.
24. There is no correlation between refusing to pay a court order and being a
trustworthy, competent dentist.
REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 7 OF 16
CONCLUSIONS OF LAW
25. The Yelp Post does not address Khademazad’s competency as a dentist or
otherwise accuse Khademazad of lacking a peculiar or unique skill necessary for the proper
conduct of his profession as a dentist.
26. No reasonable reader of the Yelp Post would conclude that a post by “Sean G.” in
“Long Beach, CA” is an accurate reflection of the professional skills of a dentist practicing in
Grand Prairie, Texas.
27. The Yelp Post did not injure Khademazad’s reputation as an individual,
professional, or dentist nor did the Yelp Post injure or compromise his occupation as a dentist.
28. The Yelp Post did not disparage Khademazad’s economic interests as a dental
professional.
29. The Yelp Post did not impeach Khademazad’s honesty, integrity, virtue, or
reputation.
30. The Yelp Post did not publish Khademazad’s natural defects.
31. At the time the Yelp Post was made, it was not reasonably foreseeable that
Khademazad would suffer any damages due to the Yelp Post.
32. The Yelp Post did not expose Khademazad to any form of harm, including public
hatred, contempt, or ridicule.
33. The Yelp Post did not cause Khademazad lost income, financial injury, pecuniary
loss, or any other form of general or special damages, nor is any such harm directly traceable to
the Yelp Post.
34. The Yelp Post did not cause Khademazad to refinance his existing loans.
35. The Yelp Post did not adversely impact Khademazad’s dental practice nor did it
cause Khademazad to lose any existing or prospective patients or any patient referral sources.
REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 8 OF 16
CONCLUSIONS OF LAW
36. The Yelp Post did not cause Khademazad to suffer a substantial disruption in his
daily routine or a high degree of mental pain and distress that rose to a level above mere worry,
anxiety, vexation, embarrassment, or anger.
37. Khademazad did not send a request for correction, clarification, or retraction of
the Yelp Post to Gharavi or his agent or attorney.
38. After the Yelp Post, and knowing of its submission and contents, the parties
entered into a Settlement Agreement to resolve the judgment entered in favor of Aidris against
Khademazad.
39. The Settlement Agreement included a release provision as follows:
[Khademazad] hereby releases, acquits and forever discharge [Aidris], its agents,
servants, employees, attorneys and all persons, natural or corporate, in privity
with [Aidris], for any and all claims or causes of action of any kind whatsoever at
common law, statutory, or otherwise which [Khademazad] has or might have,
known or unknown, now existing or that might arise hereafter, directly or
indirectly attributable to the transaction or occurrences made the basis of this
lawsuit, it being intended to release all claims of any kind which [Khademazad]
might have against those hereby released, regarding the events which are the
subject of this lawsuit, whether asserted in the above captioned suit or not.
40. This lawsuit is directly or indirectly attributable to the transactions and
occurrences that were the basis of the underlying dispute between Aidris and Khademazad.
II. CONCLUSIONS OF LAW
A. Khademazad failed to establish his statutory libel claim against Gharavi.
1. There is no evidence that the Yelp Post injured Khademazad’s reputation or
exposed him to public hatred, contempt, or ridicule or financial injury.
2. There is no evidence that the Yelp Post impeached Khademazad’s honesty,
integrity, virtue, or reputation.
3. There is no evidence that the Yelp Post published Khademazad’s natural defects
or exposed him to public hatred, ridicule, or financial injury.
REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 9 OF 16
CONCLUSIONS OF LAW
4. The Yelp post is not reasonably capable of a defamatory meaning nor was its
meaning reasonably capable of defaming Khademazad.
5. As a result, the Yelp Post was not statutory libel under TEX. CIV. PRAC. & REM.
CODE § 73.001.
B. Khademazad failed to establish his libel per se claim against Gharavi.
6. The Yelp Post does not qualify as a statement of fact because the statements
regarding the trustworthiness of Khademazad and Grand Prairie Family Dental are statements of
opinion and rhetorical hyperbole.
7. The Yelp post is not reasonably capable of a defamatory meaning nor was its
meaning reasonably capable of defaming Khademazad.
8. There is no evidence that the Yelp Post, or any of the statements contained in it, is
false or misleading.
9. The gist of the Yelp Post, and any statements contained therein, are true or are
otherwise statements of opinion or hyperbole. It is undisputed that Aidris obtained a judgment
against Khademazad, and at the time the Yelp Post was submitted, Khademazad had not paid a
penny toward the judgment.
10. There is no evidence that Gharavi submitted the Yelp post with actual malice or
negligence.
11. There is no evidence that Gharavi knew or should have known that the Yelp Post
would injure Khademazad in his profession.
12. There is no evidence that the Yelp Post accuses Khademazad of lacking a peculiar
or unique skill necessary for the proper conduct of his profession as a dentist. Accordingly,
Khademazad failed to state a claim for libel per se.
REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 10 OF 16
CONCLUSIONS OF LAW
13. There is no evidence that Yelp or Gharavi published the Yelp Post to the general
public, or that anyone actually saw the Yelp Post.
14. There is no evidence that the Yelp Post caused Khademazad general or specific
damages.
15. Accordingly, Khademazad failed to establish claims for libel or libel per se.
C. Khademazad failed to establish his negligence claim against Gharavi.
16. As a matter of law, the negligence claim fails because it is based on the same
deficient allegations as the libel claims. See, e.g., Nelson v. Pagan, 377 S.W.3d 824, 837 (Tex.
App.—Dallas 2012, no pet.) (tort claims subject to dismissal for same reason as defamation
claim) (citing Channel 4, KGBT v. Briggs, 759 S.W.2d 939, 942 (Tex. 1988)).
17. As a matter of law, Gharavi owed no duty of care to Khademazad.
18. There is no evidence to support imposing a duty of care on Gharavi.
19. There is no evidence that Gharavi breached a duty of care owed to Khademazad.
20. There is no evidence that the Yelp Post addressed Khademazad’s competency as a
dentist or otherwise accused Khademazad of lacking a peculiar or unique skill necessary for the
proper conduct of his profession as a dentist.
21. There is no evidence that Yelp or Gharavi published the Yelp Post to the general
public, or that anyone actually saw the Yelp Post.
22. There is no evidence that: (1) existing patients stopped going to Khademazad, (2)
prospective patients did not consider him, or (3) patient referral sources ceased or never
considered referring patients to him as a result of the Yelp Post.
23. There is no evidence that the Yelp Post proximately caused Khademazad
damages.
24. Accordingly, Khademazad failed to establish a negligence claim against Gharavi.
REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 11 OF 16
CONCLUSIONS OF LAW
D. Khademazad failed to establish his business disparagement claim against Gharavi.
25. The Yelp Post is not business disparagement as a matter of law because it refers
to Khademazad personally, not his economic interests. See Hurlbut v. Gulf Atl. Life Ins., 749
S.W.2d 762, 766 (Tex. 1987).
26. There is no evidence that the Yelp Post contains false or disparaging words about
Khademazad’s economic interests.
27. There is no evidence that the Yelp Post, or any of the statements contained in it, is
false, and the statements of fact contained in the Yelp Post are undisputedly true. Aidris
obtained a judgment against Khademazad, and at the time the Yelp Post was submitted,
Khademazad had not paid a penny toward the judgment.
28. There is no evidence that Gharavi submitted the Yelp Post with malice.
Relatedly, there is no evidence that, when submitting the Yelp Post, Gharavi: (1) knew the
statement to be false or acted with reckless disregard for the truth, (2) acted with ill will, or (3)
intended to interfere with Khademazad’s economic interest.
29. There is no evidence that Yelp actually published the Yelp Post or that anyone
actually saw the Yelp Post.
30. There is no evidence that: (1) existing patients stopped going to Khademazad, (2)
prospective patients did not consider him, or (3) patient referral sources ceased or never
considered referring patients to him as a result of the Yelp Post.
31. There is no evidence that the Yelp Post caused Khademazad special damages—or
any other damages. Khademazad has shown no direct pecuniary loss attributable to the Yelp
post. See Waste Mgmt. v. Texas Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 155 (Tex. 2014).
32. Accordingly, Khademazad failed to establish a business disparagement claim
against Gharavi.
REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 12 OF 16
CONCLUSIONS OF LAW
E. Khademazad is not entitled to special damages.
33. Khademazad is not entitled to recover special damages as a matter of law because
he failed to establish liability on any of his claims.
34. There is no evidence that any actual or potential patients of Khademazad saw the
Yelp Post or decided not to use Khademazad’s services as a result of the Yelp Post.
35. There is no evidence that Khademazad suffered the loss of existing patients,
prospective patients, patient referral sources, or any pecuniary loss as a result of the Yelp Post.
36. There is no evidence that Khademazad suffered lost profits as a result of the Yelp
Post.
37. There is no evidence that Khademazad suffered decreased revenues as a result of
the Yelp Post.
38. There is no evidence that Khademazad suffered increased expenses as a result of
the Yelp Post. In fact, Khademazad provided evidence of increased expenses due to causes
unrelated to the Yelp Post, such as additional equipment costs and increased wages.
39. There is no evidence that the loan refinance was caused by the Yelp Post.
40. There is no evidence that it was reasonably foreseeable that submitting the Yelp
Post would cause Khademazad to lose $73,071.07, or any amount, in profits.
41. There is no evidence that it was reasonably foreseeable that submitting the Yelp
Post would cause Khademazad to incur costs of $477,100.14, or any amount, from a loan
refinance.
42. There is no evidence that $73,071.07, or any amount, in lost profits is directly
traceable to the Yelp Post.
43. There is no evidence that $477,100.14, or any amount, in loan refinance costs are
directly traceable to the Yelp Post.
REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 13 OF 16
CONCLUSIONS OF LAW
44. There is no evidence to support a lost profits award in any amount.
45. There is no evidence to support an award for loan refinance costs in any amount.
46. Khademazad did not prove his damages to a reasonable certainty.
47. As a result, Khademazad is not entitled to recover special damages in any amount.
F. Khademazad is not entitled to general damages.
48. Khademazad is not entitled to recover general damages as a matter of law because
he failed to establish liability on any of his claims.
49. There is no evidence that the Yelp Post caused a substantial disruption in
Khademazad’s daily routine.
50. There is no evidence that the Yelp Post caused a high degree of mental pain or
distress that is more than mere worry, anxiety, vexation, embarrassment, or anger.
51. There is no evidence to justify an award of $100,000, or any amount, in general
damages due to emotional and financial pain and suffering.
52. As a result, Khademazad is not entitled to recover general damages in any
amount.
G. Khademazad is not entitled to exemplary damages.
53. Khademazad is not entitled to recover exemplary damages as a matter of law
because he failed to establish liability on any of his claims.
54. The statutory factors governing exemplary damages, including the nature of the
alleged wrong, the character of the conduct alleged, the degree of culpability, if any, the situation
and sensibilities of the parties, the extent to which the conduct alleged offends the public sense
of justice and propriety, and Gharavi’s net worth, all weigh against an award of exemplary
damages. TEX. CIV. PRAC. & REM. CODE § 41.011.
REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 14 OF 16
CONCLUSIONS OF LAW
55. Khademazad failed to show by clear and convincing evidence that Gharavi
committed fraud. Id. § 41.003(a)(3).
56. Khademazad failed to show by clear and convincing evidence that Gharavi acted
willfully or with malice in submitting the Yelp Post.
57. Khademazad failed to show by clear and convincing evidence that Gharavi acted
with a specific intent to injure Khademazad.
58. Khademazad failed to show by clear and convincing evidence that Gharavi acted
with an extreme degree of risk in submitting the Yelp Post considering the probability and
magnitude of any potential harm from the Yelp Post.
59. Khademazad failed to show by clear and convincing evidence that Gharavi had an
actual, subjective awareness of any risk from submitting the Yelp Post, nor did he proceed with
conscious indifference to the rights, safety, or welfare of Khademazad in submitting the Yelp
Post.
60. There is no evidence that the Yelp Post, or any of the statements contained in it, is
false, and the statements of fact contained in the Yelp Post are undisputedly true. Aidris
obtained a judgment against Khademazad, and at the time the Yelp Post was submitted,
Khademazad had not paid a penny toward the judgment.
61. There is no evidence that Khademazad requested a correction, clarification, or
retraction from Gharavi. As a result, Khademazad is not entitled to recover exemplary damages
against Gharavi. TEX. CIV. PRAC. & REM. CODE § 73.055(c).
62. As a result, Khademazad is not entitled to recover exemplary damages in any
amount.
H. Gharavi established defenses that preclude recovery by Khademazad.
63. Aidris and Khademazad entered into a valid, binding Settlement Agreement.
REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 15 OF 16
CONCLUSIONS OF LAW
64. It is undisputed that the parties knew of the Yelp Post at the time they entered into
the Settlement Agreement.
65. As an owner of Aidris, Gharavi is in privity with Aidris and qualifies as its agent.
66. The release bars Khademazad from asserting the claims at issue in this lawsuit
because those claims are directly or indirectly attributable to the occurrences underlying the
arbitration and judgment, namely, Khademazad’s failure to pay for Aidris’s services.
67. Under the Texas Defamation Mitigation Act, Khademazad bore the burden to
establish that he made a timely and sufficient request for a correction, clarification, or retraction
from Gharavi. TEX. CIV. PRAC. & REM. CODE § 73.055(a)(1).
68. There is no evidence that Khademazad requested a correction, clarification, or
retraction from Gharavi. As a result, he is not entitled to maintain this action against Gharavi.
TEX. CIV. PRAC. & REM. CODE § 73.055(a)(1).
69. The statements in the Yelp Post were substantially true and protected by his First
Amendment rights. The statements in the Yelp Post would not have a different effect on the
mind of the average listener than a true statement would.
Any finding of fact that is more properly a conclusion of law is hereby deemed to be a
conclusion of law. Any conclusion of law that is properly a finding of fact is hereby deemed to
be a finding of fact.
SIGNED this _____ day of ________________________, 2019.
______________________________
JUDGE PRESIDING
REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 16 OF 16
CONCLUSIONS OF LAW
Preview
FILED DALLAS COUNTY 11/1 1/2019 4:04 PM FELICIA PITRE DISTRICT CLERK Margaret Thomas CAUSE NO. DC-18-00241 BEHROOZ KHADEMAZAD d/b/a GRAND § IN THE DISTRICT COURT OF PRAIRIE FAMILY DENTAL, § § Plaintiff, § § DALLAS COUNTY, TEXAS V. § § SEAN GHARAVI, § § Defendant. § lOISt JUDICIAL DISTRICT REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW Defendant, Sean Gharavi (“Gharavi”), Without waiving any of the grounds set forth in prior or future filings} submits this Request for Additional and Amended Findings of Fact and Conclusions of Law pursuant t0 Texas Rule 0f Civil Procedure 298, and requests the Court enter the Additional and Amended Findings of Fact and Conclusions 0f Law attached as Exhibit A. all 0f his grounds for new trial and, alternatively, for modification 0f the judgment in motions 1 Gharavi Will assert t0 be filed under Texas Rule 0f Civil Procedure 329b at the appropriate time. This filing is made subject t0, and Without waiver 0f the grounds t0 be stated in those motions. It is Gharavi’s position that the current judgment and the Court’s related findings and conclusions are erroneous and that Gharavi is entitled to a take-nothing judgment in his favor. Thus, GharaVi does not agree to a modified judgment correcting the errors noted herein. See First National Bank v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989). REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 1 OF 16 CONCLUSIONS OF LAW Respectfully submitted, /S/Jason P. Bloom Jason P. Bloom Bar N0. 2404551 1 State Jason.Bloom@haynesb00ne.com Ryan Paulsen State Bar N0. 24060397 Ryan.Paulsen@haynesboone.com Christopher R. Knight State Bar N0. 24097945 Chris.Knight@haynesb00ne.com HAYNES AND BOONE, LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219 Telephone: 2 14-65 1 -5000 Facsimile: 2 14-65 1 -5940 Timothy E. Baker Texas Bar No. 24050247 1205 S. Greenville Avenue Allen Texas 75002 Telephone: (214) 727-4956 Facsimile: (214) 506-6015 tbaker@timbaker.com ATTORNEYS FOR DEFENDANT SEAN GHARAVI REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 2 OF 16 CONCLUSIONS OF LAW CERTIFICATE OF SERVICE The undersigned hereby certifies that 0n November 11, 2019, a true and correct copy 0f the foregoing document was sent Via email and/or eservice, in accordance With the Texas Rules 0f Civil Procedure to the following counsel 0f record: William L. Siegel Cowles & Thompson, P.C. 901 Main Street, Suite 3900 Dallas, Texas 75202 Bsiegel@cowlesth0mps0n.com /S/Jason P. Bloom Jason P. Bloom REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 3 OF 16 CONCLUSIONS OF LAW EXHIBIT A REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 4 OF 16 CONCLUSIONS OF LAW CAUSE NO. DC-18-00241 BEHROOZ KHADEMAZAD d/b/a GRAND § IN THE DISTRICT COURT OF PRAIRIE FAMILY DENTAL, § § Plaintiff, § § DALLAS COUNTY, TEXAS V. § § SEAN GHARAVI, § § Defendant. § lOISt JUDICIAL DISTRICT ADDITIONAL AND AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW After considering the evidence at the bench trial in this matter and the legal arguments of both parties, the Court issues the following Findings of Fact and Conclusions 0f Law: I. FINDINGS OF FACT 1. Plaintiff Behrooz Khademazad (“Khademazad”) is a dentist who practices dentistry in Grand Prairie, Texas. 2. Khademazad has exclusively practiced his profession as a dentist in 0r near Grand Prairie, Texas. Most 0f Khademazad’s patients either reside and/or work in or near Grand Prairie, Texas, and most of Khademazad’s referrals are based 0n the fact that he practices in 0r near Grand Prairie, Texas. 3. Defendant Sean Gharavi (“Gharavi”) is the sole owner of an online marketing company, Aidris, Inc. (“Aidris”). 4. Khademazad retained Aidris to perform online marketing services on his behalf. 5. GharaVi has never received dental services from Khademazad. REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 5 OF 16 CONCLUSIONS OF LAW 6. In December 2015, Aidris obtained an arbitration decision against Khademazad. The decision was recorded as a judgment in July 2016 by the County Court of Law No. 1 in Tarrant County for $89,850.20 with post-judgment interest accruing at 5% from the date of judgment. 7. In February 2017, Gharavi submitted the following post to Yelp (the “Yelp Post”): This is a review for the Grand Prairie Family Dental and Dr. Khademazad. Dr. Khademazad is not to be trusted. Grand Prairie Family Dental and Dr. Khademazad refused to pay money owed since 10/20/2010. Even after winning a major court judgment in 06/16, we still haven [sp] not received a penny of what is owed. Grand Prairie Family Dental and Dr. Khademazad can’t even be trusted with a court order !! Why would you trust him with your health?! 8. A Yelp marketing salesperson contacted Khademazad regarding the Yelp Post, and Yelp ultimately rejected the submission of the Yelp Post. 9. Gharavi submitted the Yelp Post, not as a customer reviewing Khademazad, but in an attempt to collect the unpaid judgment owed by Khademazad to Aidris. 10. Gharavi did not know the Yelp Post, or any statement therein, was false, nor did he act with reckless disregard for its falsity or fail to ascertain the truth or use ordinary care in submitting the Yelp Post. 11. Gharavi did not act willfully or with malice in submitting the Yelp Post. 12. Gharavi did not act with an extreme degree of risk in submitting the Yelp Post considering the probability and magnitude of any potential harm to others from the Yelp Post. 13. Gharavi did not have an actual, subjective awareness of any risk from submitting the Yelp Post, nor did he proceed with conscious indifference to the rights, safety, or welfare of others in submitting the Yelp Post. REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 6 OF 16 CONCLUSIONS OF LAW 14. Gharavi did not intend, know, or have reason to know, that the Yelp Post would harm Khademazad in his profession as a dentist. 15. Gharavi did not owe Khademazad a duty of care. 16. Gharavi did not breach a duty of care to Khademazad by submitting the Yelp Post. 17. The statement that Aidris won a court judgment against Khademazad in 2016 is true. 18. At the time of the Yelp Post, the statement that Aidris had not recovered on the judgment owed by Khademazad was true. 19. The statements regarding the trustworthiness of Khademazad and Grand Prairie Family Dental are statements of opinion. 20. The gist of the Yelp post is that Grand Prairie Family Dental and Khademazad had failed to pay a money judgment. 21. The statements regarding the trustworthiness of Khademazad and Grand Prairie Family Dental are statements of rhetorical hyperbole. 22. No statement in the Yelp Post is false, misleading, or defamatory, nor can the Yelp Post as a whole be perceived by an average reader as false, misleading, or defamatory. 23. The Yelp Post would not have a different effect on the mind of an average reader than a true statement would. 24. There is no correlation between refusing to pay a court order and being a trustworthy, competent dentist. REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 7 OF 16 CONCLUSIONS OF LAW 25. The Yelp Post does not address Khademazad’s competency as a dentist or otherwise accuse Khademazad of lacking a peculiar or unique skill necessary for the proper conduct of his profession as a dentist. 26. No reasonable reader of the Yelp Post would conclude that a post by “Sean G.” in “Long Beach, CA” is an accurate reflection of the professional skills of a dentist practicing in Grand Prairie, Texas. 27. The Yelp Post did not injure Khademazad’s reputation as an individual, professional, or dentist nor did the Yelp Post injure or compromise his occupation as a dentist. 28. The Yelp Post did not disparage Khademazad’s economic interests as a dental professional. 29. The Yelp Post did not impeach Khademazad’s honesty, integrity, virtue, or reputation. 30. The Yelp Post did not publish Khademazad’s natural defects. 31. At the time the Yelp Post was made, it was not reasonably foreseeable that Khademazad would suffer any damages due to the Yelp Post. 32. The Yelp Post did not expose Khademazad to any form of harm, including public hatred, contempt, or ridicule. 33. The Yelp Post did not cause Khademazad lost income, financial injury, pecuniary loss, or any other form of general or special damages, nor is any such harm directly traceable to the Yelp Post. 34. The Yelp Post did not cause Khademazad to refinance his existing loans. 35. The Yelp Post did not adversely impact Khademazad’s dental practice nor did it cause Khademazad to lose any existing or prospective patients or any patient referral sources. REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 8 OF 16 CONCLUSIONS OF LAW 36. The Yelp Post did not cause Khademazad to suffer a substantial disruption in his daily routine or a high degree of mental pain and distress that rose to a level above mere worry, anxiety, vexation, embarrassment, or anger. 37. Khademazad did not send a request for correction, clarification, or retraction of the Yelp Post to Gharavi or his agent or attorney. 38. After the Yelp Post, and knowing of its submission and contents, the parties entered into a Settlement Agreement to resolve the judgment entered in favor of Aidris against Khademazad. 39. The Settlement Agreement included a release provision as follows: [Khademazad] hereby releases, acquits and forever discharge [Aidris], its agents, servants, employees, attorneys and all persons, natural or corporate, in privity with [Aidris], for any and all claims or causes of action of any kind whatsoever at common law, statutory, or otherwise which [Khademazad] has or might have, known or unknown, now existing or that might arise hereafter, directly or indirectly attributable to the transaction or occurrences made the basis of this lawsuit, it being intended to release all claims of any kind which [Khademazad] might have against those hereby released, regarding the events which are the subject of this lawsuit, whether asserted in the above captioned suit or not. 40. This lawsuit is directly or indirectly attributable to the transactions and occurrences that were the basis of the underlying dispute between Aidris and Khademazad. II. CONCLUSIONS OF LAW A. Khademazad failed to establish his statutory libel claim against Gharavi. 1. There is no evidence that the Yelp Post injured Khademazad’s reputation or exposed him to public hatred, contempt, or ridicule or financial injury. 2. There is no evidence that the Yelp Post impeached Khademazad’s honesty, integrity, virtue, or reputation. 3. There is no evidence that the Yelp Post published Khademazad’s natural defects or exposed him to public hatred, ridicule, or financial injury. REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 9 OF 16 CONCLUSIONS OF LAW 4. The Yelp post is not reasonably capable of a defamatory meaning nor was its meaning reasonably capable of defaming Khademazad. 5. As a result, the Yelp Post was not statutory libel under TEX. CIV. PRAC. & REM. CODE § 73.001. B. Khademazad failed to establish his libel per se claim against Gharavi. 6. The Yelp Post does not qualify as a statement of fact because the statements regarding the trustworthiness of Khademazad and Grand Prairie Family Dental are statements of opinion and rhetorical hyperbole. 7. The Yelp post is not reasonably capable of a defamatory meaning nor was its meaning reasonably capable of defaming Khademazad. 8. There is no evidence that the Yelp Post, or any of the statements contained in it, is false or misleading. 9. The gist of the Yelp Post, and any statements contained therein, are true or are otherwise statements of opinion or hyperbole. It is undisputed that Aidris obtained a judgment against Khademazad, and at the time the Yelp Post was submitted, Khademazad had not paid a penny toward the judgment. 10. There is no evidence that Gharavi submitted the Yelp post with actual malice or negligence. 11. There is no evidence that Gharavi knew or should have known that the Yelp Post would injure Khademazad in his profession. 12. There is no evidence that the Yelp Post accuses Khademazad of lacking a peculiar or unique skill necessary for the proper conduct of his profession as a dentist. Accordingly, Khademazad failed to state a claim for libel per se. REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 10 OF 16 CONCLUSIONS OF LAW 13. There is no evidence that Yelp or Gharavi published the Yelp Post to the general public, or that anyone actually saw the Yelp Post. 14. There is no evidence that the Yelp Post caused Khademazad general or specific damages. 15. Accordingly, Khademazad failed to establish claims for libel or libel per se. C. Khademazad failed to establish his negligence claim against Gharavi. 16. As a matter of law, the negligence claim fails because it is based on the same deficient allegations as the libel claims. See, e.g., Nelson v. Pagan, 377 S.W.3d 824, 837 (Tex. App.—Dallas 2012, no pet.) (tort claims subject to dismissal for same reason as defamation claim) (citing Channel 4, KGBT v. Briggs, 759 S.W.2d 939, 942 (Tex. 1988)). 17. As a matter of law, Gharavi owed no duty of care to Khademazad. 18. There is no evidence to support imposing a duty of care on Gharavi. 19. There is no evidence that Gharavi breached a duty of care owed to Khademazad. 20. There is no evidence that the Yelp Post addressed Khademazad’s competency as a dentist or otherwise accused Khademazad of lacking a peculiar or unique skill necessary for the proper conduct of his profession as a dentist. 21. There is no evidence that Yelp or Gharavi published the Yelp Post to the general public, or that anyone actually saw the Yelp Post. 22. There is no evidence that: (1) existing patients stopped going to Khademazad, (2) prospective patients did not consider him, or (3) patient referral sources ceased or never considered referring patients to him as a result of the Yelp Post. 23. There is no evidence that the Yelp Post proximately caused Khademazad damages. 24. Accordingly, Khademazad failed to establish a negligence claim against Gharavi. REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 11 OF 16 CONCLUSIONS OF LAW D. Khademazad failed to establish his business disparagement claim against Gharavi. 25. The Yelp Post is not business disparagement as a matter of law because it refers to Khademazad personally, not his economic interests. See Hurlbut v. Gulf Atl. Life Ins., 749 S.W.2d 762, 766 (Tex. 1987). 26. There is no evidence that the Yelp Post contains false or disparaging words about Khademazad’s economic interests. 27. There is no evidence that the Yelp Post, or any of the statements contained in it, is false, and the statements of fact contained in the Yelp Post are undisputedly true. Aidris obtained a judgment against Khademazad, and at the time the Yelp Post was submitted, Khademazad had not paid a penny toward the judgment. 28. There is no evidence that Gharavi submitted the Yelp Post with malice. Relatedly, there is no evidence that, when submitting the Yelp Post, Gharavi: (1) knew the statement to be false or acted with reckless disregard for the truth, (2) acted with ill will, or (3) intended to interfere with Khademazad’s economic interest. 29. There is no evidence that Yelp actually published the Yelp Post or that anyone actually saw the Yelp Post. 30. There is no evidence that: (1) existing patients stopped going to Khademazad, (2) prospective patients did not consider him, or (3) patient referral sources ceased or never considered referring patients to him as a result of the Yelp Post. 31. There is no evidence that the Yelp Post caused Khademazad special damages—or any other damages. Khademazad has shown no direct pecuniary loss attributable to the Yelp post. See Waste Mgmt. v. Texas Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 155 (Tex. 2014). 32. Accordingly, Khademazad failed to establish a business disparagement claim against Gharavi. REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 12 OF 16 CONCLUSIONS OF LAW E. Khademazad is not entitled to special damages. 33. Khademazad is not entitled to recover special damages as a matter of law because he failed to establish liability on any of his claims. 34. There is no evidence that any actual or potential patients of Khademazad saw the Yelp Post or decided not to use Khademazad’s services as a result of the Yelp Post. 35. There is no evidence that Khademazad suffered the loss of existing patients, prospective patients, patient referral sources, or any pecuniary loss as a result of the Yelp Post. 36. There is no evidence that Khademazad suffered lost profits as a result of the Yelp Post. 37. There is no evidence that Khademazad suffered decreased revenues as a result of the Yelp Post. 38. There is no evidence that Khademazad suffered increased expenses as a result of the Yelp Post. In fact, Khademazad provided evidence of increased expenses due to causes unrelated to the Yelp Post, such as additional equipment costs and increased wages. 39. There is no evidence that the loan refinance was caused by the Yelp Post. 40. There is no evidence that it was reasonably foreseeable that submitting the Yelp Post would cause Khademazad to lose $73,071.07, or any amount, in profits. 41. There is no evidence that it was reasonably foreseeable that submitting the Yelp Post would cause Khademazad to incur costs of $477,100.14, or any amount, from a loan refinance. 42. There is no evidence that $73,071.07, or any amount, in lost profits is directly traceable to the Yelp Post. 43. There is no evidence that $477,100.14, or any amount, in loan refinance costs are directly traceable to the Yelp Post. REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 13 OF 16 CONCLUSIONS OF LAW 44. There is no evidence to support a lost profits award in any amount. 45. There is no evidence to support an award for loan refinance costs in any amount. 46. Khademazad did not prove his damages to a reasonable certainty. 47. As a result, Khademazad is not entitled to recover special damages in any amount. F. Khademazad is not entitled to general damages. 48. Khademazad is not entitled to recover general damages as a matter of law because he failed to establish liability on any of his claims. 49. There is no evidence that the Yelp Post caused a substantial disruption in Khademazad’s daily routine. 50. There is no evidence that the Yelp Post caused a high degree of mental pain or distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. 51. There is no evidence to justify an award of $100,000, or any amount, in general damages due to emotional and financial pain and suffering. 52. As a result, Khademazad is not entitled to recover general damages in any amount. G. Khademazad is not entitled to exemplary damages. 53. Khademazad is not entitled to recover exemplary damages as a matter of law because he failed to establish liability on any of his claims. 54. The statutory factors governing exemplary damages, including the nature of the alleged wrong, the character of the conduct alleged, the degree of culpability, if any, the situation and sensibilities of the parties, the extent to which the conduct alleged offends the public sense of justice and propriety, and Gharavi’s net worth, all weigh against an award of exemplary damages. TEX. CIV. PRAC. & REM. CODE § 41.011. REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 14 OF 16 CONCLUSIONS OF LAW 55. Khademazad failed to show by clear and convincing evidence that Gharavi committed fraud. Id. § 41.003(a)(3). 56. Khademazad failed to show by clear and convincing evidence that Gharavi acted willfully or with malice in submitting the Yelp Post. 57. Khademazad failed to show by clear and convincing evidence that Gharavi acted with a specific intent to injure Khademazad. 58. Khademazad failed to show by clear and convincing evidence that Gharavi acted with an extreme degree of risk in submitting the Yelp Post considering the probability and magnitude of any potential harm from the Yelp Post. 59. Khademazad failed to show by clear and convincing evidence that Gharavi had an actual, subjective awareness of any risk from submitting the Yelp Post, nor did he proceed with conscious indifference to the rights, safety, or welfare of Khademazad in submitting the Yelp Post. 60. There is no evidence that the Yelp Post, or any of the statements contained in it, is false, and the statements of fact contained in the Yelp Post are undisputedly true. Aidris obtained a judgment against Khademazad, and at the time the Yelp Post was submitted, Khademazad had not paid a penny toward the judgment. 61. There is no evidence that Khademazad requested a correction, clarification, or retraction from Gharavi. As a result, Khademazad is not entitled to recover exemplary damages against Gharavi. TEX. CIV. PRAC. & REM. CODE § 73.055(c). 62. As a result, Khademazad is not entitled to recover exemplary damages in any amount. H. Gharavi established defenses that preclude recovery by Khademazad. 63. Aidris and Khademazad entered into a valid, binding Settlement Agreement. REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 15 OF 16 CONCLUSIONS OF LAW 64. It is undisputed that the parties knew of the Yelp Post at the time they entered into the Settlement Agreement. 65. As an owner of Aidris, Gharavi is in privity with Aidris and qualifies as its agent. 66. The release bars Khademazad from asserting the claims at issue in this lawsuit because those claims are directly or indirectly attributable to the occurrences underlying the arbitration and judgment, namely, Khademazad’s failure to pay for Aidris’s services. 67. Under the Texas Defamation Mitigation Act, Khademazad bore the burden to establish that he made a timely and sufficient request for a correction, clarification, or retraction from Gharavi. TEX. CIV. PRAC. & REM. CODE § 73.055(a)(1). 68. There is no evidence that Khademazad requested a correction, clarification, or retraction from Gharavi. As a result, he is not entitled to maintain this action against Gharavi. TEX. CIV. PRAC. & REM. CODE § 73.055(a)(1). 69. The statements in the Yelp Post were substantially true and protected by his First Amendment rights. The statements in the Yelp Post would not have a different effect on the mind of the average listener than a true statement would. Any finding of fact that is more properly a conclusion of law is hereby deemed to be a conclusion of law. Any conclusion of law that is properly a finding of fact is hereby deemed to be a finding of fact. SIGNED this _____ day of ________________________, 2019. ______________________________ JUDGE PRESIDING REQUEST FOR ADDITIONAL AND AMENDED FINDINGS OF FACT AND PAGE 16 OF 16 CONCLUSIONS OF LAW