Opinion
No. 04-17-00078-CV
02-21-2018
Jorge Alberto Enriquez SERRALDE, Appellant v. Carlos Cerda FLORES, Marco Antonio Cerda Flores, Mario Alberto Cerda Flores, and Sandra Cerda Flores, Appellees
MEMORANDUM OPINION
From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2012CVF001560 D1
Honorable Jose A. Lopez, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
Jorge Alberto Enriquez Serralde appeals a final judgment the trial court rendered after a jury trial. Serralde argues the trial court erred by denying his two pleas to the jurisdiction, denying his motion to disregard the jury's findings, and awarding attorney's fees to appellees. We affirm the trial court's judgment.
BACKGROUND
Appellees Carlos Cerda Flores, Marco Antonio Cerda Flores, Mario Alberto Cerda Flores, and Sandra Cerda Flores sued Serralde alleging the following facts:
In parts of the record appellee Carlos Cerda Flores is referred to as Carlos Cerda, but his name appears as "Carlos Cerda Flores" on the final judgment.
Plaintiffs and Defendant Jorge Enriquez [Serralde] had done business together. More specifically, Plaintiffs had paid certain fees to Defendant Enriquez as compensation for the clearing of customs for certain merchandise for Plaintiffs' clients using Defendant Enriquez' Mexican broker's license. Thereafter, Plaintiffs and Defendant Enriquez discussed a transaction whereby Defendant Enriquez would undertake certain measures that would result in his broker's license being transferred to one of the Plaintiffs. The parties attempted to agree on a written contract for this transaction but a written contract was never executed. Despite the contract negotiations not having concluded, and despite not having a signed written contract, Plaintiffs tendered $300,000 (U.S.) to Defendant Enriquez by delivering such funds to Defendant Robert Perez as requested by Defendant Enriquez. Unfortunately, however, the parties never signed a written contract, Defendant Enriquez never accomplished the transfer of the license to Plaintiffs, and, despite demand, never returned the $300,000 (U.S.) to Plaintiffs.The specific legal theories of recovery and claims for relief appellees alleged included recovery of money had and received, common law fraud, rescission of contract, breach of contract, declaratory judgment, theft, exemplary damages, and attorney's fees.
Many of the trial court pleadings show Serralde's name as Jorge Alberto Enriquez, but the final judgment refers to him as Jorge Alberto Enriquez Serralde.
In addition to generally denying appellees' allegations and alleging affirmative defenses, Serralde filed a plea to the jurisdiction and a motion for summary judgment. In the plea to the jurisdiction, Serralde alleged the parties entered into their agreement in Mexico, they selected Mexico as the forum for dispute resolution, and at the center of the agreement was a Mexican broker's license. Serralde asserted that consequently, there are no justiciable issues, appellees' causes of action are moot, and another court has exclusive jurisdiction over the suit. The trial court denied Serralde's plea to the jurisdiction, and the trial court's ruling on Serralde's motion for summary judgment is not reflected in the record. However, at oral argument in this court, the parties explained that during an informal pretrial hearing in chambers, the trial court ruled that only two claims would be tried to the jury: breach of contract and money had and received. The jury found the parties entered into an agreement, Serralde breached the agreement, and $150,000 would fairly compensate appellees for Serralde's breach.
The jury did not answer the questions regarding appellees' claim of money had and received pursuant to the charge's instructions.
The parties stipulated the trial court would make findings regarding the recovery of attorney's fees. After the jury trial, Serralde filed a motion to disregard the jury findings as contrary to facts conclusively established by the evidence. He also filed a second plea to the jurisdiction, arguing that only appellee Sandra Flores had standing to sue because the evidence established the money came from her account. Appellees filed a motion to enter judgment and attached billing records as evidence to support their claim for attorney's fees. After a hearing, the trial court signed a final judgment awarding appellees damages in the amount found by the jury, pre-judgment interest, post-judgment interest, and attorney's fees. Serralde appeals.
PARTIAL REPORTER'S RECORD
We note at the outset Serralde has presented this appeal on a partial reporter's record. The reporter's record consists of only the hearing on the parties' post-trial motions. Under Rule 34.6(c), an appellant may present an appeal on a partial reporter's record if he includes in the request for the reporter's record a statement of the points or issues to be presented on appeal; he will then be limited on appeal to only those points or issues raised. TEX. R. APP. P. 34.6(c)(1); In re J.S.P., 278 S.W.3d 414, 418 (Tex. App.—San Antonio 2008, no pet.). "When an appellant fails to file the statement of appellate points or issues, we presume that the material missing from the reporter's record is relevant and supports the trial court's judgment." In re J.S.P., 278 S.W.3d at 418. Here, Serralde did not file a statement of the points or issues he intended to present on appeal as required by Rule 34.6(c)(1). We are therefore required to presume the omitted portions of the record are relevant and support the trial court's judgment. See id.
PLEAS TO THE JURISDICTION
Serralde contends the trial court erred by denying his two pleas to the jurisdiction. We review a trial court's ruling on a plea to the jurisdiction de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A plea to the jurisdiction is an appropriate mechanism to challenge a trial court's subject matter jurisdiction. Id. When a plea to the jurisdiction challenges the pleadings, we determine whether the pleader has alleged facts that affirmatively demonstrate the trial court's jurisdiction. Id. If the pleadings affirmatively negate the existence of the trial court's jurisdiction, then the trial court may grant a plea to the jurisdiction without allowing the plaintiff an opportunity to amend his pleadings. Id. at 226-27.
If a plea to the jurisdiction challenges the existence of jurisdictional facts that implicate the merits of the case, "we consider relevant evidence submitted by the parties to determine if a fact issue exists." Suarez v. City of Texas City, 465 S.W.3d 623, 632-33 (Tex. 2015). "We take as true all evidence favorable to the nonmovant, indulge every reasonable inference, and resolve any doubts in the nonmovant's favor." Id. at 633. "If the evidence creates a fact question regarding jurisdiction, the plea must be denied pending resolution of the fact issue by the fact finder." Id. "If the evidence fails to raise a question of fact, however, the plea to the jurisdiction must be granted as a matter of law." Id.
A. First Plea to the Jurisdiction
In his first plea to the jurisdiction, Serralde argued all the material facts of this case occurred in Mexico, and as per the contemplated written agreement, the parties chose Mexico as the proper forum for dispute resolution. In support of his first plea, Serralde filed an unsigned, proposed contract between the parties and an excerpt from the deposition of appellee Marco Flores. On appeal, Serralde reiterates these facts and states Marco Flores "was not (and is not) authorized to work . . . in the United States, unless permitted by the U.S. with a required permit." He further notes appellee Marco Flores failed to perform under the contract. Based on these facts, Serralde argues there is no "justiciable interest . . . for this Texas forum."
Serralde appears to be arguing Texas is a forum non conveniens. See, e.g., Vinmar Trade Fin., Ltd. v. Util. Trailers de Mexico, S.A. de C.V., 336 S.W.3d 664, 671 (Tex. App.—Houston [14th Dist.] 2010, no pet.). However, forum non conveniens does not deprive a court of jurisdiction; rather, it applies only when the court has jurisdiction. See id. A "forum non conveniens determination is committed to the sound discretion of the trial court." Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010) (per curiam). "It may be reversed only when there has been a clear abuse of discretion; where the court has considered all the relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference." Id. To obtain dismissal on the basis of forum non conveniens, the defendant "bear[s] the burden of proof on all elements of the forum non conveniens analysis and must establish that the balance of factors strongly favors dismissal." Vinmar, 336 S.W.3d at 672.
Serralde has not provided a record showing the trial court abused its discretion by declining to dismiss the suit based on Texas being a forum non conveniens. See id. He also does not present any argument or authority supporting the elements of forum non conveniens or showing how there has been an abuse of discretion. Furthermore, forum non conveniens does not deprive a court of subject matter jurisdiction. See id. at 671. We therefore hold the trial court did not err by denying Serralde's first plea to the jurisdiction.
B. Second Plea to the Jurisdiction
Serralde argues the trial court should have granted his second plea to the jurisdiction because appellees lacked standing. In support of his argument, he states appellees were either not a party to the contract, had no interest in the money they sought to recover, or were "not even working in the industry to which the agreement related," as in appellee Sandra Flores's case. Serralde contends appellees' counsel judicially admitted at the hearing on the post-trial motions that the money delivered to Serralde was derived from an account belonging to Sandra Flores. He argues the record thereby establishes there is no justiciable controversy as to the other appellees.
A plaintiff may establish standing to maintain a breach-of-contract action by demonstrating the plaintiff has an enforceable interest as a party to the contract. Hinton v. Nationstar Mortgage LLC, 533 S.W.3d 44, 48 (Tex. App.—San Antonio 2017, no pet.). In its findings, the jury answered "Yes" to the following question: "Did Plaintiffs and Defendant enter into an agreement for the use and transfer of Defendant's Mexican customs broker's license?" The jury question refers generally to "Plaintiffs," identified in the style of the charge as Carlos, Marco, Mario, and Sandra. The jury found there was a contract between the "Plaintiffs and Defendant." As we noted at the outset, we must presume the omitted portions of the reporter's record support the jury's findings. We therefore presume that even if the funds delivered to Serralde came from Sandra Flores's account, the evidence supported the trial court's determination that all appellees had standing as parties to the contract and that it had subject matter jurisdiction. See id.; see In re J.S.P., 278 S.W.3d at 418. We hold the trial court did not err by denying Serralde's second plea to the jurisdiction.
MOTION TO DISREGARD THE JURY'S FINDINGS
Serralde contends the trial court erred by denying his motion to disregard the jury's findings. In support of this contention, Serralde argues no evidence supports the jury's findings and the jury's findings were contrary to facts conclusively established by the evidence at trial. However, Serralde did not request a reporter's record of the jury trial. Consequently, the record before us does not support Serralde's argument that there is no evidence to support the jury's findings or that the jury's findings were contrary to facts conclusively established by the evidence at trial. Because Serralde requested only a partial reporter's record and did not file a statement of points or issues, we must presume the omitted parts of the reporter's record would establish there is evidence supporting the jury's findings and that the jury's findings are not contrary to facts conclusively established by the evidence at trial. See In re J.S.P., 278 S.W.3d at 418. We therefore cannot say the trial court erred by denying Serralde's motion to disregard the jury's findings.
ATTORNEY'S FEES
Serralde contends the trial court erred by awarding appellees attorney's fees. In support of his contention, Serralde argues appellees did not "prevail" on their breach-of-contract claim because they recovered only $150,000 of the $300,000 alleged damages; the trial court's attorney's fees award of $51,453.97 was not supported by the evidence; appellees did not pay the entire $51,453.97 to their attorneys; and appellees failed to segregate their attorney's fees for claims summarily dismissed by the trial court. Serralde further contends he is the prevailing party and requests we render judgment awarding him attorney's fees.
The parties stipulated the issue of attorney's fees would be determined by the trial court. "We review a trial court's award of attorney's fees for an abuse of discretion." Mungia v. Via Metro. Transit, 441 S.W.3d 542, 545 (Tex. App.—San Antonio 2014, pet. denied). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or made without reference to guiding legal principles. Id. "Whether attorney's fees can be awarded under a statute, however, is a question of law that we review de novo." Id.
A party is entitled to recover attorney's fees in addition to the amount of a valid claim based on a contract. Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 201 (Tex. 2004) (per curiam) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 38.001). To recover attorney's fees for breach of contract, the claimant must prevail on the breach-of-contract claim. Schuhardt Consulting Profit Sharing Plan v. Double Knobs Mountain Ranch, Inc., 468 S.W.3d 557, 575 (Tex. App.—San Antonio 2014, pet. denied). A party prevails on a breach-of-contract claim when it obtains at least some relief on the merits of the claim. Intercontinental Group P'ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 654 (Tex. 2009). The trial court rendered judgment on the jury findings that Serralde breached the parties' contract and $150,000 would fairly compensate appellees for Serralde's breach. Because appellees obtained some relief on the merits of their claim, they were the prevailing parties at trial. See id. Serralde was not the prevailing party in the trial court and is therefore not entitled to his attorney's fees. See id.
In arguing the trial court's award of attorney's fees is not supported by the evidence, Serralde specifically notes the affidavit from appellees' counsel and his billing records—which were attached to appellees' motion to enter judgment—reflected reasonable and necessary attorney's fees in the case totaled $48,808.97. However, at the hearing, the trial court heard testimony showing appellees' counsel performed additional work in response to Serralde's post-trial motions. Appellees' counsel testified the reasonable and necessary attorney's fees for that additional work performed after the trial was over $5,100. The award of $51,453.97 in attorney's fees is supported by the evidence before the trial court. We cannot say the overall award of attorney's fees is arbitrary, unreasonable, or made without reference to guiding legal principles. See Mungia, 441 S.W.3d at 545.
Serralde further contends appellees are not entitled to recover attorney's fees not actually paid by them, but rather paid by a third party on their behalf. In support of this contention, Serralde notes several of the billing records are addressed to one of the appellees "c/o" Grupo MCA Importaciones, LLC. The record does not support Serralde's assertion that any portion of the attorney's fees were unpaid or paid by a third party, such as Grupo MCA Importaciones, LLC. Serralde also cites no authority establishing a party is not entitled to recover attorney's fees that were not actually paid. Generally, when a party prevails on a breach-of-contract claim, the party's failure to actually pay their attorney is not a bar to recovery of reasonable attorney's fees. See, e.g., Rauscher Pierce Refsnes, Inc. v. Koenig, 794 S.W.2d 514, 516 (Tex. App.—Corpus Christi 1990, writ denied) (holding contingency fee arrangement is not a bar to prevailing party's recovery of reasonable attorney's fees in breach-of-contract action).
The record does not clarify what relationship exists between appellees and Grupo MCA Importaciones, LLC.
Serralde also contends appellees failed to segregate their attorney's fees. "[A] claimant must segregate legal fees accrued for those claims for which attorneys fees are recoverable from those that are not." Kinsel v. Lindsey, 526 S.W.3d 411, 427 (Tex. 2017) (citing Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 314 (Tex. 2006)). "An exception exists only when the fees are based on claims arising out of the same transaction that are so intertwined and inseparable as to make segregation impossible." Id. However, "it is only when discrete legal services advance both a recoverable and unrecoverable claim that they are so intertwined that they need not be segregated." Id.
Appellees produced numerous billing records and appellees' counsel testified at trial the fees could not have been segregated. The extent of Serralde's argument on appeal is as follows:
Additionally, [appellees' counsel] failed to segregate his fees for work that included six of the [a]ppellees' seven causes of action that were dismissed. It is certain that Appellees were not the prevailing parties on those dismissed claims. That represents over 85% of [a]ppellees' claims. Accordingly, approximately $35,000.00, at least, of [appellees' counsel]'s fees should have been segregated from the sole claim that actually went to trial.Serralde does not explain how the record shows appellees' claims were not so intertwined that they required segregation. See id.; see also TEX. R. APP. P. 38.1(i) (requiring an appellant's brief to "contain a clear and concise argument for the contentions made, with appropriate citations to authorities"). We hold the trial court did not abuse its discretion by awarding appellees $51,453.97 in attorney's fees. See Mungia, 441 S.W.3d at 545.
CONCLUSION
We affirm the trial court's judgment.
Luz Elena D. Chapa, Justice