Opinion
No. 05-09-01541-CV
Opinion Filed April 19, 2011.
On Appeal from the County Court at Law No. 3, Dallas County, Texas, Trial Court Cause No. cc-07-14378-C.
Before Justices MURPHY, FILLMORE, and MYERS.
MEMORANDUM OPINION
Appellants, Mansour Farokhnia and Stephanie Signature, Inc., d/b/a Stephanie Furniture, appeal the denial of their motion for new trial, following an adverse judgment. In six issues, appellants contest the trial court's denial of their motion for new trial and argue that the entry of a judgment that includes punitive damages violates appellants' due process rights under the Fifth and Fourteenth Amendments. We affirm.
Background and Procedural History
Appellees, Mohamad Farokhnia and Mitra Farokhnia, sued appellants for fraud and breach of fiduciary duty based on a dispute regarding ownership and operation of a furniture store known as Stephanie Furniture. Appellants counterclaimed for fraud and breach of contract. Prior to trial, appellants served appellees with requests for production that requested appellees to produce, among other things, "all bank statements and records identifying the deposits and credits applied through the use of Plaintiffs['] credit card machine installed at 13500 Midway Road, Suite 212, Farmers Branch, Texas 75244." Appellees provided bank account statements from Bank of America for "Loft Design and Decor Company," the entity that appellees formed to operate their interest in the furniture store, but did not produce any other bank account statements.
During the trial, appellees testified that their personal bank account at Bank of America also received some deposits and credits resulting from sales made on behalf of Loft Design and Decor Company. Appellees, however, did not provide this information in their response to the request for production. Appellees do not dispute that some entries on their personal bank statements were included within the scope of appellants' request for production and should have been produced, but argue there was nothing intentional about the omissions.
Appellants did not object at trial regarding appellees' personal bank account statements not being produced prior to trial, nor did they request a continuance to give them additional time to prepare. But after appellees testified that their personal bank account also received some deposits and credits concerning Loft Design and Decor Company, the trial court gave appellants' trial counsel permission to examine appellees regarding their personal bank account statements and the discovery omission. The relevant portion of the record reads as follows:
[APPELLANTS' TRIAL COUNSEL]: I'm trying to show something else, Your Honor. I mean, it's like I'm being dragged down this rabbit trail.
THE COURT: I think they may be getting dragged down a rabbit trail. The problem is this was something that wasn't worked out before trial. I understand you thought you were cleared. They thought they understood what you wanted.
If there's not a problem between you all, if it can be accounted for, it's really not something I wish were being tried. But in the meantime we've got a jury here. So I'm going to let her explain it as best she can, and she can say she didn't understand what you wanted until yesterday.
[APPELLANTS' TRIAL COUNSEL]: That's what I want.
THE COURT: That's all we can do for you at this point.
[APPELLANTS' TRIAL COUNSEL]: Yes, Your Honor. Thank you.
The case was tried before a jury, which found in favor of appellees and awarded them actual damages of $38,837.14 and punitive damages of $20,000. The jury rejected all of appellants' counterclaims.
Discussion
Motion for New trial
Appellants' first five issues are based on the trial court's decision to overrule their motion for new trial in which they argued, among other things, that "the Court disregarded [appellants'] objections with regards to [appellees'] discovery requests, causing the discovery of new evidence." Appellants' first five issues, which we will address together, are as follows:
Appellants also argued in their motion for new trial that the trial court "erroneously found the existence of a fiduciary duty," but that issue is not raised in this appeal.
(1) Whether appellees' representation to produce all responsive documents but subsequent intentional incomplete production of responsive documents constituted compliance with the rules of civil procedure?
(2) Whether appellees' response to appellants' request for production was in such a way as to mislead appellants to believe no other responsive documents were to be produced?
(3) But for appellees' unilateral filtering of responsive documents and willful failure to be forthright in their discovery responses, would appellants have had a different result at trial?
(4) Whether appellees' response to appellants' request for production justified the filing of a motion to compel?
(5) Whether appellees' complete disregard for the purpose, rationale, and objective behind discovery resulted in injustice, inequality, and an unfair trial?
Appellees "concede that as a strictly technical matter, several entries contained on the personal bank statements of [a]ppellees, fell within the ambit of one of [a]ppellants['] request for production," but they maintain that they did not intentionally fail to produce documents in response to appellants' discovery request.
The general rule is that trial courts have wide discretion in ruling on motions for new trial and their actions will not be disturbed on appeal absent a showing of an abuse of discretion. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d 715, 721 (Tex. 2003). We review trial court rulings on motions for new trial or motions to reopen the evidence for an abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam) (motion for new trial); Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 629 (Tex. App.-Dallas 2004, pet. denied) (motion for new trial on grounds of newly discovered evidence); Naguib v. Naguib, 137 S.W.3d 367, 372 (Tex. App.-Dallas 2004, pet. denied) (motion to reopen the evidence). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner or when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
Before determining whether the trial court abused its discretion, however, we must consider whether appellants preserved their first five issues for appellate review. Although appellants allude to a "side-bar" objection they claim was overruled by the trial court, they point to nothing in the record showing they objected or that the court overruled a motion, objection, or request for relief regarding the discovery omission that is the basis for this appeal. A complaint not presented to the trial court by a timely, specific objection is not preserved for appeal. See Tex. R. App. P. 33.1(a). An objection is timely urged when asserted at either the earliest opportunity or when the potential error becomes apparent. Hoxie Implement Co. v. Baker, 65 S.W.3d 140, 152 (Tex. App.-Amarillo 2001, pet. denied). The opportunity for appellants to object arose at trial, when appellees acknowledged that their discovery responses were incomplete.
But appellants did not make an objection on the record. See Tex. R. App. P. 33.1(a). Nor did they request a continuance to investigate any newly discovered evidence or better prepare for trial. See Tex. R. Civ. P. 193.6(c) (when party fails to timely make, amend, or supplement discovery response, trial court may grant continuance or temporarily postpone trial to allow for response and to "allow opposing parties to conduct discovery regarding any new information presented by that response"); see also Henderson v. Wellmann, 43 S.W.3d 591, 598 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (complaint regarding failure to respond to request for disclosures not preserved in absence of objection to one-day continuance allowing response and failure to request "additional time to prepare after the disclosures were made"); McInnes v. Yamaha Motor Corp., 659 S.W.2d 704, 714 (Tex. App.-Corpus Christi 1983), aff'd, 673 S.W.2d 185 (Tex. 1984) ("If appellant felt that he was ill-prepared to go forth with his case due to Yamaha's failure to comply with discovery orders, he should have urged a motion for continuance and a full-blown pre-trial hearing on his motion to strike Yamaha's pleadings").
Not until their motion for new trial did appellants complain about appellees' discovery omissions. This was too late. See St. Paul Surplus Lines v. Dal-Worth Tank Co., 974 S.W.2d 51, 53 (Tex. 1998) (raising complaint for first time in motion for new trial insufficient to satisfy requirement for timely objection where complaint could have been raised earlier); see also Hallett v. Houston Nw. Med. Ctr., 689 S.W.2d 888, 890 (Tex. 1985) ("A party cannot wait until the trial is finished, then seek to reverse an unfavorable verdict by complaining of an error which the trial court could have corrected had it been timely informed of the error"); Warrantech Corp. v. Computer Adapters Servs., 134 S.W.3d 516, 530-31 (Tex. App.-Fort Worth 2004, no pet.) (no abuse of discretion by denying motion for new trial where complaining party failed to object or seek relief from trial court, other than motion for new trial alleging discovery abuse). Having failed to urge a timely objection, appellants have not preserved their complaint for appellate review. See Tex. R. App. P. 33.1(a).
Moreover, we do not have a reporter's record of the hearing on appellants' motion for new trial. It was appellants' burden to furnish this Court with a record supporting their allegations of error. See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990); Simon v. York Crane Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987). Absent a complete record of the hearing showing that the trial court abused its discretion in denying appellants' motion for new trial, we must presume that adequate evidence was presented at the hearing to support the trial court's order. See Simon, 739 S.W.2d at 794-95; In re D.A.P., 267 S.W.3d 485, 487 (Tex. App.-Houston [14th Dist.] 2008, no pet.). Therefore, we conclude the trial court did not abuse its discretion in denying appellants' motion for new trial. We overrule issues one, two, three, four, and five.
Punitive Damages
In their sixth issue, appellants argue that the trial court's entry of a judgment that included exemplary damages violated appellants' due process rights under the Fifth and Fourteenth Amendments. At no time did they make that objection to the trial court, and they in fact submitted their own proposed question on exemplary damages in connection with their counterclaim for fraud.
As we understand appellants' argument, they now contend that any award of punitive damages, whether or not it could be deemed excessive, is an unconstitutional violation of a defendant's right to due process, and that it also violates prohibitions against double jeopardy.
Appellants, however, fail to cite any federal or Texas authority to support their argument. Nor have we found any such authority. We overrule appellants' sixth issue.
We affirm the trial court's judgment.