Opinion
No. 05-10-01496-CV
Opinion Filed November 17, 2011.
On Appeal from the 101st Judicial District Court, Dallas County, Texas, Trial Court Cause No. 09-09704-E.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
MEMORANDUM OPINION
Appellee TXU Energy Retail Company, LLC sued Shiva Worldwide, Inc. and appellant Kishor Madrasi on unpaid electric bills. Shiva defaulted, and the trial judge held a bench trial on the claim against Madrasi. After the trial, the judge signed a judgment awarding TXU damages and attorney's fees jointly and severally against Madrasi and Shiva. Madrasi appealed. We affirm.
I. Parties to the Appeal
At the outset, we note that appellant's brief appears to be filed on behalf of both Madrasi and Shiva Worldwide, Inc., but only Madrasi filed a notice of appeal. Shiva neither filed a notice of appeal nor joined in Madrasi's notice. Under the rules of appellate procedure, "[a] party who seeks to alter the trial court's judgment or other appealable order must file a notice of appeal." Tex. R. App. P. 25.1(c).
"We have no jurisdiction to consider issues brought by a party who does not file or join in a timely notice of appeal." Doran v. ClubCorp USA, Inc., No. 05-06-01511-CV, 2008 WL 451879, at *3 (Tex. App.-Dallas Feb. 21, 2008, no pet.) (mem. op.). Thus, Shiva is not a party to this appeal, and we will not consider the issues raised in appellant's brief to the extent they relate to the judgment against Shiva.
II. Background
TXU sued Madrasi and Shiva, alleging that TXU entered into a contract, written or unwritten, with the defendants to supply electricity. TXU further alleged that the defendants failed to pay all amounts due and owing under the contract. TXU asserted claims against Madrasi and Shiva for breach of contract, quantum meruit, and civil conspiracy to defraud. TXU also alleged that Shiva was a "corporate sham" that should be disregarded in the determination of liability and damages.
Madrasi answered and filed a motion to transfer venue to Harris County. The trial judge denied the motion to transfer. The case was tried to the bench. At the beginning of the trial, the judge noted that Shiva had not filed an answer and stated that he would enter a default judgment against Shiva. After a one-day bench trial, the judge signed a final judgment in which he imposed joint and several liability on Madrasi and Shiva for damages in the amount of $6,408.81, plus attorney's fees.
Defendants filed a motion to modify the judgment, which the trial judge denied. Madrasi then filed a notice of appeal. After filing the notice of appeal, and more than 20 days after the judgment was signed, Madrasi filed a request for findings of fact and conclusions of law. No findings of fact or conclusions of law appear in the appellate record.
III. Analysis
Madrasi raises four issues on appeal, contending that the trial judge erred by: (1) denying Madrasi's motion to transfer venue, (2) excluding from evidence the text of certain regulations of the Texas Public Utility Commission, (3) admitting into evidence a letter of authorization, and (4) holding Madrasi personally liable in the judgment.
A. Admission of evidence
We address Madrasi's third issue first because the evidence involved in that issue is important to our resolution of Madrasi's first issue. In his third issue, Madrasi argues that the trial judge erred by admitting into evidence TXU's exhibit 2, a document entitled "Enrollment for Electric Service and Letter of Authorization." Madrasi contends that the trial judge should have excluded the Letter of Authorization as a discovery sanction.
Madrasi appears to rely on Texas Rule of Civil Procedure 193.6, which establishes a general rule that a party may not introduce evidence at trial if the evidence was requested in discovery and the party did not "make, amend, or supplement a discovery response in a timely manner." Tex. R. Civ. P. 193.6(a). The trial judge has discretion to admit evidence that was not timely disclosed if the proponent of the evidence shows good cause for its failure or shows lack of unfair surprise or unfair prejudice. Tex. R. Civ. P. 193.6(a), (b). We review a trial court's evidentiary ruling for abuse of discretion. Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854, 859-60 (Tex. App.-Dallas 2006, no pet.). "A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles." Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). The issue was presented to the trial court in this manner. The case was set for trial on August 9, 2010, but it apparently was not reached on that day. Madrasi filed a motion for continuance that was heard on August 13, and at that time the case was continued until the week of September 20. On September 10, Madrasi filed a "Motion for Discovery Sanctions" in which he argued that the judge should exclude all evidence of a contract between TXU and him because TXU did not timely produce any such evidence in discovery. TXU filed a response in which it contended that it had timely supplemented its discovery responses by disclosing a copy of the contract (apparently meaning the Letter of Authorization) to Madrasi on August 13. The judge took up the motion for sanctions before the bench trial commenced on September 23. At that pretrial conference, counsel for TXU explained that TXU had not found the Letter of Authorization at first, and that he immediately disclosed the document to Madrasi once TXU found it in its system. TXU's counsel also pointed out that in Madrasi's discovery responses, Madrasi denied the existence of any written contract, which reasonably led TXU's counsel to believe no written contract existed. The trial judge denied the Madrasi's motion for sanctions and admitted the Letter of Authorization at trial over Madrasi's objection.
We conclude the trial judge did not abuse his discretion. Specifically, the trial judge could have reasonably and non-arbitrarily concluded that TXU timely supplemented its discovery responses to disclose the Letter of Authorization to Madrasi. Rule 193.5 provides that a supplemental discovery response "must be made reasonably promptly after the party discovers the necessity for such a response," and that a supplemental response made less than 30 days before trial is presumed not to have been made reasonably promptly. Tex. R. Civ. P. 193.5(b). Here, TXU produced the Letter of Authorization more than 30 days before the trial date of September 20, 2010. The trial judge could have concluded that TXU produced the Letter of Authorization timely under Rule 193.5(b), and thus that the exclusionary rule found in Rule 193.6(a) was not triggered.
We reject Madrasi's third issue on appeal.
B. Venue
In his first issue on appeal, Madrasi challenges the denial of his motion to transfer venue. TXU alleged that venue was proper in Dallas County under several venue statutes. One of them was the general venue statute, § 15.002 of the civil practice and remedies code. Under that provision, venue is proper "in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred." Tex. Civ. Prac. Rem. Code Ann. § 15.002(a)(1) (West 2002). TXU alleged that some events giving rise to the claim occurred in Dallas County, such as the processing of defendants' order for TXU electrical services and products and the sending of all bills. In his motion to transfer venue, Madrasi averred that the alleged contract was for the provision of electricity to a motel called the Guest Motel located in Harris County, Texas. He further averred that no substantial part of the events or omissions giving rise to the claim occurred in Dallas County. Madrasi attached an affidavit in which he verified those facts. We consider the entire record, including any trial on the merits, in reviewing the trial judge's venue determination. Tex. Civ. Prac. Rem. Code Ann. § 15.064(b); Velasco v. Tex. Kenworth Co., 144 S.W.3d 632, 634 (Tex. App.-Dallas 2004, pet. denied). If there is any probative evidence that supports venue in the county of suit, the trial court must deny the motion to transfer-even if the evidence preponderates to the contrary. Velasco, 144 S.W.3d at 634. Under § 15.002(a)(1), more than one county can qualify as a proper venue, because there can be more than one county in which a "substantial part of the event or omissions" giving rise to the claims occurred. Id. at 635. Thus, to prevail on his motion to transfer venue, Madrasi had to establish that no substantial part of the events giving rise to TXU's claims occurred in Dallas County, not merely that a substantial part of those events occurred in Harris County. See id.
The Letter of Authorization suffices to show that Dallas County was a proper venue in this case. The letter shows that it was an offer by TXU to supply electricity on the terms stated therein. Moreover, the letter's heading recites TXU's contact information and shows TXU's address as 1717 Main Street, Suite 2000, Dallas, Texas 75201. We may take judicial notice that this address is within Dallas County. See Tex. R. Evid. 201(c) ("A court may take judicial notice, whether requested or not."); Barber v. Intercoast Jobbers Brokers, 417 S.W.2d 154, 157-58 (Tex. 1967) (holding that a court may take judicial notice that a specific intersection is located in a particular county). Thus, it can reasonably be inferred from the letter itself that TXU's offer was prepared in, and transmitted to Madrasi from, Dallas County. It can further be inferred from the letter that Madrasi accepted the offer by signing the letter and transmitting it back to TXU at its address in Dallas County. Offer and acceptance are essential elements of a valid contract. Cessna Aircraft Co. v. Aircraft Network, L.L.C., 213 S.W.3d 455, 465 (Tex. App.-Dallas 2006, pet. denied). The existence of a valid contract is an essential element of a claim for breach of contract. Petras v. Criswell, 248 S.W.3d 471, 477 (Tex. App.-Dallas 2008, no pet.). In this case, the events in Dallas County relating to offer and acceptance comprised a substantial part of the event or omissions giving rise to TXU's breach-of-contract claim. Thus, venue was proper in Dallas County. See Killeen v. Lighthouse Elec. Contractors, L.P., 248 S.W.3d 343, 348 (Tex. App.-San Antonio 2007, pet. denied) (where parties negotiated disputed settlement agreement via communications across county lines, venue was proper in county where demand letter originated and where related telephone calls were received).
We reject Madrasi's first issue on appeal.
C. Exclusion of evidence
In his second issue on appeal, Madrasi argues that the trial judge erred by excluding from evidence Madrasi's exhibit 1. Exhibit 1 is a three-page document containing what appears to be the text of a statute or regulation numbered "§ 25.475" and entitled "General Retail Electric Provider Requirements and Information Disclosures to Residential and Small Commercial Customers." When Madrasi offered the document into evidence, the judge stated that he did not think the document was self-authenticating, and TXU objected that it was hearsay. Madrasi argued that the document contained public information and had been downloaded from the internet. The judge sustained TXU's objection "based upon the predicate I've got right now." As noted above, we review a trial court's evidentiary ruling for abuse of discretion. Lopez, 200 S.W.3d at 859-60.
In his argument on appeal, Madrasi focuses solely on whether he adequately authenticated exhibit 1; he does not address the hearsay objection TXU made in the trial court. In any event, we conclude the trial judge did not abuse his discretion by excluding the exhibit. Madrasi relies on Texas Rule of Evidence 902(5), which provides that "[b]ooks, pamphlets, or other publications purporting to be issued by public authority" are self-authenticating. Tex. R. Evid. 902(5). But exhibit 1 is neither a book nor a pamphlet, and it is not clear on the face of the document that it was purportedly issued by a public authority. The document does not identify its source, and there is no URL address printed on the document. The trial judge did not abuse his discretion by concluding that Madrasi had not made a sufficient showing of authenticity even under the self-authentication provision of Rule 902(5).
Moreover, any error in excluding the document was harmless. Madrasi argues that exhibit 1 would have enabled him to show the trial judge that the Letter of Authorization was not a valid contract under state regulations. But as TXU points out, Madrasi could have argued the regulation as legal authority regardless of whether exhibit 1 was admitted into evidence or not. The text contained in exhibit 1 appears to match a provision in the Texas Administrative Code, 16 Tex. Admin. Code § 25.475, and we agree with TXU that Madrasi's stated purpose was to rely on that provision as legal authority, not as a material fact in the case. Thus, Madrasi did not need to have exhibit 1 admitted into evidence in order to rely on it for his desired purpose. We reject Madrasi's second issue on appeal.
D. Personal liability
In his fourth issue on appeal, Madrasi argues that the trial court erred by imposing liability on him personally because any contractual obligation was owed by Shiva Worldwide, Inc. only. Specifically, he argues that he signed any documents relating to TXU's claim only in his capacity as an employee of Shiva and not in a personal capacity. He further argues that there is no basis for piercing the corporate veil and imposing Shiva's contractual liability on him. TXU responds that Madrasi signed the Letter of Authorization in his personal capacity and that the trial court properly held him liable in his personal capacity based on this fact.
Madrasi's fourth issue amounts to an attack on the sufficiency of the evidence to support the trial judge's implied finding that Madrasi was personally obligated on the contract. Madrasi does not dispute that he signed the Letter of Authorization; rather, he contends that he is not personally liable because he signed the letter only as an agent for Shiva Worldwide. In this scenario, agency is an affirmative defense, so Madrasi bore the burden of proof on the issue. See Wright Group Architects-Planners, P.L.L.C. v. Pierce, 343 S.W.3d 196, 200 (Tex. App.-Dallas 2011, no pet.).
Because Madrasi did not properly request findings of fact and conclusions of law, we imply all findings of fact necessary to support the judgment. See In re W.C.B., 337 S.W.3d 510, 513 (Tex. App.-Dallas 2011, no pet.). We have a reporter's record from the trial, so we can review the implied findings for legal and factual sufficiency of the evidence. See id. We apply the same standards of review that we apply to a jury's findings. Ashcraft v. Lookadoo, 952 S.W.2d 907, 910 (Tex. App.-Dallas 1997) (en banc), writ denied, 977 S.W.2d 562 (Tex. 1998) (per curiam). Because Madrasi bore the burden of proof on agency, a legal-sufficiency challenge requires him to demonstrate that he proved his agency defense as a matter of law. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). In our review, we must credit evidence favorable to the finding if reasonable jurors could and disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In a factual-sufficiency challenge, we review all the evidence and decide whether the adverse finding is against the great weight and preponderance of the evidence. See Dow Chem. Co., 46 S.W.3d at 242. We set the finding aside only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that the finding is clearly wrong and unjust. Id.
Madrasi's agency defense required him to prove that he disclosed he was acting in a representative capacity and that he disclosed the identity of his principal. Wright Group, 343 S.W.3d at 200; accord Sw. Bell Media, Inc. v. Trepper, 784 S.W.2d 68, 72 (Tex. App.-Dallas 1989, no writ). If there is a written contract that unambiguously shows on its face that it is the obligation of the person who signed it, the signer may not introduce parol evidence to show that the signer intended to bind only his principal. Wright Group, 343 S.W.3d at 200. But if the contract is ambiguous as to whether the parties intended to bind the signer or his principal, parol evidence of the circumstances surrounding its execution is admissible to show the parties' true understanding. Id.; accord Lassiter v. Rotogravure Comm., Inc., 727 S.W.2d 8, 9 (Tex. App.-Dallas 1986, writ ref'd n.r.e.).
With these principles in mind, we review the Letter of Authorization. At the top of the letter is a blank for "Company Name"; "Guest Motel" is handwritten in that blank. There is also a space for "DBA" that is left blank. The next blank is for "Type of Entity," and that blank contains seven pre-printed choices: corporation, partnership, limited partnership, limited liability company, sole proprietorship, non-profit corporation, and "Other." The box for sole proprietorship is marked with an "X," and none of the other boxes is marked. Madrasi signed the bottom of the letter, and he initialed several places on the letter. Next to his signature, in parentheses, is the handwritten word "owner." Madrasi testified at trial that the signature and initials were his. Madrasi further testified, however, that he did not mark the box for "Sole Proprietorship." He also testified that he signed the letter "[a]s executive of Shiva Worldwide." But he acknowledged that the words "Shiva Worldwide, Inc." do not appear anywhere on the letter. Madrasi presented evidence that Shiva Worldwide, Inc. did business under the name "Guest Motel."
We conclude the evidence is legally and factually sufficient to support the trial judge's refusal to find in Madrasi's favor on his agency defense. The Letter of Authorization does not unambiguously establish on its face that Madrasi was signing in a representative capacity. We will assume without deciding that the letter is ambiguous on the agency question, thereby making parol evidence admissible. Even so, the trial judge's rejection of Madrasi's affirmative defense of agency was supported by sufficient evidence. Madrasi cites no evidence showing that he disclosed to TXU before signing the Letter of Authorization that he was signing it only as an agent for another entity. We have reviewed Madrasi's testimony and the exhibits admitted at trial, and we find no evidence that Madrasi informed TXU before he signed the letter that he intended to sign only as the agent of another. Even if Madrasi had testified to such facts, the trial judge is the sole arbiter of the credibility of the witnesses in a bench trial. Wright Group, 343 S.W.3d at 199. Thus, the judge was entitled to accept or reject all or any part of Madrasi's testimony. See Rich v. Olah, 274 S.W.3d 878, 884 (Tex. App.-Dallas 2008, no pet.). Madrasi did not establish his agency defense as a matter of law, nor was the trial judge's rejection of his defense against the great weight and preponderance of the evidence. We reject Madrasi's fourth issue on appeal.
IV. Disposition
For the foregoing reasons, we affirm the judgment of the trial court.