Affirmed and Memorandum Opinion filed March 5, 2019.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-17-00632-CV

                           ALI YAZDCHI, Appellant
                                        V.
          TD AMERITRADE AND WILLIAM E. RYAN, Appellees

                    On Appeal from the 129th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2014-74155

                 MEMORANDUM                      OPINION


      In this appeal from a traditional summary judgment, the appellant contends
that the judgment is not final because there is a pending claim against a deceased
defendant, and thus, we lack jurisdiction over this appeal. Alternatively, he argues
that the judgment should be reversed because the summary-judgment grounds are
without merit. Because the summary judgment disposed of all claims against the
only remaining defendant, we conclude that the judgment was final, and thus,
appealable. Reaching the merits of the ruling, we conclude that the trial court did
not err in granting summary judgment on the ground of collateral estoppel. We
accordingly affirm the judgment.

                                   I. BACKGROUND

      Ali Yazdchi sued TD Ameritrade (“Ameritrade”) and William E. Ryan for
conversion, bad faith, and deceptive trade practices, and asserted additional claims
against Ameritrade for breach of contract and negligence. According to Yazdchi,
Ryan manufactured an unauthorized durable power of attorney purporting to grant
Ryan the power to withdraw funds from any account in Yazdchi’s name and to sign
Yazdchi’s name to any check, draft, or receipt. Yazdchi alleges that Ryan had
drafted a more limited power of attorney in which all of the terms were on the
document’s first page and Yazdchi’s notarized signature was on the second page.
Yazdchi claims that Ryan then drafted the broad power of attorney at issue in this
case and attached the page containing Yazdchi’s notarized signature. According to
Yazdchi, Ryan used the manufactured power of attorney to withdraw $81,000.00
from Yazdchi’s Ameritrade account without Yazdchi’s authorization.

      Ryan died while this suit was pending in the trial court, and Yazdchi thereafter
pursued his claims in this suit only against Ameritrade.

A.    The Chase Lawsuit

      In a separate federal suit styled as Yazdchi v. JP Morgan Chase Bank, N.A.,
No. 4:15-cv-00121, in the Southern District of Texas, Houston Division (“the Chase
Lawsuit”), Yazdchi sued JPMorgan Chase Bank (“Chase”) for claims arising from
the same power of attorney. As in this case, he alleged that his notarized signature
was on the second page of a more limited power of attorney, and that Ryan had
switched the first page of that document for another, broader power of attorney,


                                          2
which Ryan used to withdraw funds from Yazdchi’s Chase bank account without
Yazdchi’s consent.

      Chase moved for summary judgment, producing evidence that included a
letter to Chase dated March 14, 2013 “acknowledging the power of attorney up to
that point and revoking it from that point forward.” Yazdchi v. JP Morgan Chase
Bank, N.A. (Chase I), CV H-15-121, 2015 WL 12551491, at *3 (S.D. Tex. Dec. 28,
2015). In December 2015, the federal district court granted Chase’s motion for
summary judgment and dismissed Yazdchi’s claims with prejudice. See id. at *4.

      Yazdchi appealed from that ruling, and the appeal deprived the federal district
court of jurisdiction over the Chase Lawsuit. See Yazdchi v. JP Morgan Chase Bank,
N.A. (Chase II), CV H-15-121, 2016 WL 4097142, at *3 (S.D. Tex. Aug. 2, 2016).
Nevertheless, Yazdchi later filed a motion for reconsideration in the district court,
which purported to grant the motion, vacate the judgment, and remand the case to
state court. See id. After Chase pointed out that the trial court lacked jurisdiction to
take such action, the trial court vacated those rulings. See id. Yazdchi then
attempted a state-court appeal of the federal court’s acknowledgment that it lacked
jurisdiction to vacate the summary judgment or to remand the Chase Lawsuit to state
court, and our sister court dismissed the case for want of jurisdiction. See Yazdchi
v. JP Morgan Chase Bank, N.A. (Chase III), No. 01-17-00301-CV, 2017 WL
2255773, at *1 (Tex. App.—Houston [1st Dist.] May 23, 2017, no pet.) (per curiam)
(mem. op.). Yazdchi’s federal appeal of the Chase summary judgment also was
unsuccessful, and Supreme Court of the United States denied certiorari. See Yazdchi
v. JPMorgan Chase Bank, N.A. (Chase IV), 138 S. Ct. 2578 (May 29, 2018). Thus,
the federal court’s summary judgment in Chase’s favor remains a final judgment.




                                           3
B.    Summary Judgment in This Suit

      Ameritrade moved for traditional summary judgment on the grounds that
(1) due to the final judgment in the Chase Lawsuit, Yazdchi is barred by collateral
estoppel from contesting the validity and authenticity of the power of attorney;
(2) Yazdchi is barred by res judicata from relitigating the claims he asserted or could
have asserted in the Chase Lawsuit; (3) there is no genuine issue of material fact that
Yazdchi signed the power of attorney, which was valid in all respects and authorized
the transfers at issue; (4) there is no genuine issue of material fact that Yazdchi
additionally signed a Trading Authorization Agreement, which was valid and which
also authorized the transfers at issue; and (5) Yazdchi has suffered no damages as a
result of Ameritrade’s issuance of checks as requested by Ryan because the checks
were deposited in Yazdchi’s Chase bank account. The trial court granted summary
judgment without stating the grounds, and Yazdchi now appeals the ruling.

                                  II. JURISDICTION

      Yazdchi argues that the summary judgment in Ameritrade’s favor is not a final
judgment because it does not dispose of his claims against Ameritrade’s co-
defendant William Ryan. With exceptions inapplicable here, an appeal may be taken
only from a final judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195
(Tex. 2001). Thus, if the summary judgment is not final, we lack jurisdiction to
review it.

      We conclude, however, that the summary judgment is a final judgment. The
record shows that Ryan’s counsel filed a suggestion of death on March 10, 2017,
reporting that Ryan had died the previous day. Having passed beyond the trial
court’s power, Ryan necessarily ceased to be a party. See First Nat’l Bank in Dall.
v. Hawn, 392 S.W.2d 377, 379 (Tex. App.—Dallas 1965, writ ref’d n.r.e.) (“As a
matter of law, his death removed him as a party, for a suit cannot be maintained
                                          4
against a dead man.”). A few days later, the same attorney filed an amended
suggestion of death identifying the representative of Ryan’s estate. Yazdchi could
have amended his pleading to substitute the estate’s representative for Ryan, or he
could have caused the clerk of the court to issue a scire facias to the estate’s
representative. See TEX. R. CIV. P. 152. Yazdchi, however, did neither. See Hawn,
392 S.W.2d at 379 (explaining that a deceased defendant’s estate is not a party to
pending litigation “in the absence of affirmative acts making it a party and notifying
its representative”).   The suit therefore proceeded against the only remaining
defendant. See TEX. R. CIV. P. 155. Thus, when the trial court granted Ameritrade’s
motion for summary judgment and ordered Yazdchi’s claims against Ameritrade
dismissed with prejudice, the trial court rendered a final judgment disposing of all
of the parties and issues that remained in the case. Because a judgment disposing of
all pending parties and claims is a final judgment, we conclude that we have
jurisdiction over Yazdchi’s appeal. See Lehmann, 39 S.W.3d at 195.

                             III. SUMMARY JUDGMENT

      To prevail on a traditional motion for summary judgment, the movant must
show that there is no genuine issue of material fact and that it is entitled to judgment
as a matter of law. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,
215–16 (Tex. 2003). We review a summary judgment de novo, construing the
evidence in the light most favorable to the non-movant by crediting evidence
favorable to the non-movant if a reasonable juror could and disregarding contrary
evidence unless a reasonable juror could not.         Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

      Because it is dispositive of the appeal, we address only Ameritrade’s
summary-judgment ground of collateral estoppel. Collateral estoppel, also known
as issue preclusion, “is designed to promote judicial efficiency, protect parties from

                                           5
multiple lawsuits, and prevent inconsistent judgments by precluding the relitigation
of issues.” Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801–02 (Tex.
1994). It applies “when an issue decided in the first action is actually litigated,
essential to the prior judgment, and identical to an issue in a pending action.” Tex.
Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 579 (Tex. 2001). Ameritrade moved
for summary judgment on the ground, among others, that the Chase Lawsuit
established that Yazdchi’s signature on the power of attorney naming Ryan as his
attorney-in-fact is authentic and the power of attorney is valid, and thus, Yazdchi is
collaterally estopped from relitigating the issue.

      On appeal, Yazdchi argues that (a) collateral estoppel does not apply because
Chase and Ameritrade are different entities and Ameritrade was not a party to the
Chase Lawsuit; (b) the facts of this case differ from the facts in the Chase Lawsuit,
which involved Ryan’s production of an allegedly manufactured power of attorney
to a financial institution, because there is no evidence that Ryan produced the power
of attorney to Ameritrade, and Ameritrade did not produce a power of attorney in its
responses to discovery; (c) the determination in the Chase Lawsuit that the power of
attorney is valid was not essential to the judgment, which instead could have been
based on Yazdchi’s failure to promptly report unauthorized withdrawals; (d) the
summary judgment in the Chase Lawsuit cannot support Ameritrade’s collateral-
estoppel argument because the Chase judgment was vacated and the case was
remanded to state court, after which the federal district court had no jurisdiction to
set aside its remand order and reinstate the summary judgment. We address each of
these arguments in turn.

A.    No Mutuality Required

      Yazdchi first points out that Ameritrade was not a party to the Chase Lawsuit,
but this is no bar to the collateral-estoppel doctrine, under which “it is only necessary

                                           6
that the party against whom the doctrine is asserted was a party or in privity with a
party in the first action.” Sysco Food Servs., 890 S.W.2d at 802; see also Eagle
Props., Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex. 1990) (sub. op.) (same).1
Yazdchi is the party against whom the doctrine is asserted in this case, and it is
undisputed that he was a party to the Chase Lawsuit.

B.     Presentment of the Power of Attorney to Ameritrade

       In his next group of arguments, Yazdchi attempts to differentiate the facts of
this case from those of the Chase Lawsuit by asserting that there is no evidence Ryan
presented the power of attorney to Ameritrade, and that the Ameritrade transactions
instead were based solely on a forged trading authorization agreement. No evidence
supports this.

       First, Yazdchi asserted in his live pleadings that the power of attorney was
presented to Ameritrade. Because this assertion of fact was not pleaded in the
alternative, we regard it as a judicial admission. See, e.g., Holy Cross Church of
God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001); Hous. First Am. Sav. v.
Musick, 650 S.W.2d 764, 767 (Tex. 1983). A party who has judicially admitted a
fact is barred from disputing it. See Holy Cross Church, 44 S.W.3d at 568. As for
Ameritrade’s alleged failure to produce the power of attorney in response to a
discovery request, Yazdchi judicially admitted in his pleading that Ameritrade gave
him a copy of the power of attorney before the suit was filed, and he attached a copy
of the document to his pleading.

       1
          This is one of the ways in which the doctrines of collateral estoppel and res judicata differ.
See, e.g., Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78, 86 (Tex. 2008) (res judicata
requires “(1) a prior final judgment on the merits by a court of competent jurisdiction; (2) the same
parties or those in privity with them; and (3) a second action based on the same claims as were
raised or could have been raised in the first action”), superseded by statute on other grounds as
recognized in Engelman Irrigation Dist. v. Shields Bros., Inc., 514 S.W.3d 746, 750 n.28 (Tex.
2017).

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      Second, Ameritrade supported its summary-judgment motion with Ryan’s
declaration from the Chase Lawsuit that he provided the durable powers of attorney
not only to Chase, but also to Ameritrade, Wells Fargo Bank, N.A., and BBVA
Compass Bank, “and each of these financial institutions honored the power of
attorney.” Yazdchi produced no controverting evidence. To the contrary, Yazdchi
attested in the declaration he attached to his summary-judgment response that both
an “unauthorized P.O.A. and unauthorized TD Ameritrade trading authorization
agreement . . . were presented to TD Ameritrade in December 2010.”

      Third, the checks by which funds were removed from the Ameritrade account
were made payable to Ali Yazdchi, and each is endorsed “Ali Yazdchi” by “William
E. Ryan POA.”

      The record therefore conclusively establishes that Ameritrade, like Chase,
honored the allegedly manufactured power of attorney presented to it. It is therefore
unnecessary to consider whether the transfers were independently authorized by the
trading authorization agreement.

C.    Power of Attorney’s Acknowledged Validity Essential to the Chase
      Judgment
      Yazdchi additionally contends that the determination in the Chase Lawsuit
that the power of attorney is valid was not essential to the judgment, which instead
could have been based on Yazdchi’s failure to promptly report unauthorized
withdrawals as required by Texas Business & Commerce Code § 4.406. See TEX.
BUS. & COM. CODE ANN. § 4.406(c) (requiring a customer to “exercise reasonable
promptness” in examining bank statements and notifying the bank of unauthorized
payments). Yazdchi neither raised this argument in his summary-judgment response
nor produced evidence that Chase moved for summary judgment on that basis.



                                         8
       The Chase Lawsuit’s order granting summary judgment instead shows that
the ruling was based on Yazdchi’s many acknowledgments of the power of
attorney’s validity.2 As the Chase court stated in its order, “Chase submitted
competent summary judgment evidence in this case establishing undisputed facts.
The facts the evidence establishes are worth setting out here because they not only
entitle Chase to judgment but also show that Yazdchi’ s claims are frivolous.” The
facts established were as follows:

    On November 30, 2010, Yazdchi entered into a Fee Agreement with Ryan
       stating that “counsel [Ryan] will be in possession of certain sums belonging
       to client [plaintiff], pursuant to a General Power of Attorney” and that “client
       authorizes and directs counsel to take all actions which counsel deems
       advisable on behalf of the client” for “services related to the management of
       Ali Yazdchi’ s affairs.”

    Yazdchi’s signatures on three powers of attorney were notarized by a Harris
       County Sheriff’s deputy on December 3, 2010.3

    Ryan presented the powers of attorney to Chase, Ameritrade, Wells Fargo
       Bank, N.A., and BBVA Compass, and each of these financial institutions
       honored the documents and allowed Ryan access to Yazdchi’s accounts.

    On the same day that the powers of attorney were notarized, Ryan, as
       Yazdchi’s representative, used a cashier’s check drawn on Yazdchi’s Chase
       account to pay attorney Samuel Adamo $25,000 to file a motion for new trial
       in the criminal case in which Yazdchi had been convicted.


       2
         See FED. R. CIV. P. 56 (“The court should state on the record the reasons for granting or
denying the [summary-judgment] motion.”).
       3
           The three documents are identical.

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    Two days later, Yazdchi signed a Legal Services Contract with Adamo to file
       the motion for new trial. The Legal Services Contract states that Ryan, as
       Yazdchi’s representative, paid Adamo $25,000 on December 3, 2010,
       confirming that Yazdchi provided the Power of Attorney to Ryan and thereby
       authorized him to make withdrawals and payments from the Chase account.

    Yazdchi sued Adamo in a separate action, in which he filed a pleading stating
       that he hired Adamo to file a motion for new trial and that Adamo was paid
       “$25,000 to prepare and file the motion for new trial.” Yazdchi did not
       contend in the Adamo suit that payment was unauthorized; rather, he argued
       that Adamo overcharged for the services provided. The court in the Adamo
       case granted Adamo’s motion for summary judgment and declared Yazdchi a
       vexatious litigant.4

    Until February 2013, Yazdchi’s Chase monthly account statements were sent
       to the address he provided Chase, which was the same address he provided to
       the Chase court for notice.

    In correspondence dated January 16, 2013 and in an authorization dated April
       23, 2013, Yazdchi acknowledged that Ryan had “the control of all my money”
       and expressly authorized Ryan to make certain payments on his behalf. The
       April 23, 2013, payment authorization also asked Ryan for an accounting “of
       all fees and expenses paid to Bill since November 2010,” acknowledging that



       4
         See Yazdchi v. Jones, No. 2015-05013, 11th District Court, Harris County, Texas.
Yazdchi also was found to be a vexatious litigant in his cases against BBVA Compass Bank and
Wells Fargo Bank, N.A. See Yazdchi v. BBVA Compass Bank, No. 2015-05657, 151st District
Court, Harris County, Texas; Yazdchi v. Wells Fargo Bank, N.A., 2015-11585, 215th District
Court, Harris County, Texas. As statutorily required of persons found to be vexatious litigants,
Yazdchi received the permission of the local administrative district judge to bring this appeal. See
TEX. CIV. PRAC. & REM. CODE § 11.102.

                                                10
      Yazdchi knew Ryan was making payments on his behalf under a power of
      attorney.

    The last withdrawal from the Chase account was on February 22, 2013.

    In a letter dated March 14, 2013, Yazdchi notified Chase that he had revoked
      the “William E. Ryan Power of Attorney,” stating that “Ryan was not
      authorized to pay to himself unless [Yazdchi] approved the payment” and that
      Chase should “immediately remove [Ryan’s] name from [Yazdchi’s]
      account.” Yazdchi did not dispute the validity of the power of attorney or
      contend that Ryan forged the documents or substituted pages.

    In a letter to Chase dated May 29, 2013, Yazdchi transmitted a “notice of
      revocation” of the power of attorney, requested copies of his bank statements,
      and asked Chase to change his address. Once again, Yazdchi “indicated that
      he was revoking the Power of Attorney because Ryan was making payments
      to himself from Yazdchi’s accounts without giving him the opportunity to
      review the invoices first.”

      The Chase court’s discussion of the evidence demonstrates that its ruling was
based on evidence that Yazdchi would have known from the bank statements that
Ryan was using the power of attorney to make payments on Yazdchi’s behalf from
Yazdchi’s account, and that he nevertheless acknowledged the validity of the power
of attorney as valid. The ruling was not based on a finding that Yazdchi failed to act
with reasonable promptness in examining the bank statements and in notifying the
bank of an alleged lack of authorization; rather, the ruling was based on Yazdchi’s
knowing and repeated acknowledgement that the power of attorney was valid and
that it authorized the bank to allow Ryan access to Yazdchi’s funds. Thus, the
determination of the power of attorney’s validity was essential to the judgment in
the Chase Lawsuit.
                                         11
D.     Chase Judgment’s Continuing Validity

       In his remaining arguments, Yazdchi contends that the final judgment
rendered in the Chase Lawsuit in December 2015 has no effect because the federal
district court issued an order vacating the judgment and remanding the case to state
court. Although the federal court later vacated that order, thereby reinstating the
judgment,5 Yazdchi asserts that the federal court could not vacate its earlier order
because, having remanded the case, the federal court no longer had jurisdiction over
the case.

       Yazdchi already has litigated this issue in the federal courts and lost. See
Chase II; Chase IV. The federal district court concluded that, by filing a notice of
appeal, Yazdchi deprived the trial court of jurisdiction. See Chase II, 2016 WL
4097142, at *3. Because Yazdchi did not ask the trial court to vacate its judgment
and remand the case until after the court lost jurisdiction, its order purporting to grant
the requested relief was void when issued. See, e.g., Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94, 118 S. Ct. 1003, 1012, 140 L. Ed. 2d 210 (1998) (“Without
jurisdiction the court cannot proceed at all in any cause.”); Ex parte Reed, 100 U.S.
13, 23, 25 L. Ed. 538 (1879) (“Every act of a court beyond its jurisdiction is void.”).
The federal district court had the power to acknowledge this,6 and it did so by setting
aside the vacatur-and-remand order on the ground that it lacked jurisdiction to issue
it. See Chase II, 2016 WL 4097142, at *3. The federal court’s judgment on that
issue is not subject to collateral attack in state court. See U.S. CONST. art. IV, § 1;
Morton v. City of Boerne, 345 S.W.3d 485, 488 (Tex. App.—San Antonio 2011, pet.
denied); Bexar Metro. Water Dist. v. City of San Antonio, 228 S.W.3d 887, 895 (Tex.

       5
           See Chase II, 2016 WL 4097142, at *3.
       6
         See Steel, 523 U.S. at 94, 118 S. Ct. at 1012 (“[W]hen [jurisdiction] ceases to exist, the
only function remaining to the court is that of announcing the fact and dismissing the cause.”
(quoting Ex parte McCardle, 7 Wall. 506, 514, 19 L. Ed. 264 (1868))).

                                                12
App.—Austin 2007, no pet.). The judgment rendered in the Chase Lawsuit in
December 2015 therefore remains a final judgment with preclusive effect.

      We overrule the sole issue presented.

                                  IV. CONCLUSION

      Because the issue of the power of attorney’s validity was finally determined
in, and essential to, the judgment in the Chase Lawsuit, Yazdchi is collaterally
estopped from relitigating the issue.       We accordingly affirm the trial court’s
judgment in Ameritrade’s favor.




                                      /s/      Tracy Christopher
                                               Justice


Panel consists of Justices Christopher, Hassan, and Poissant.




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