Madrasi, Kishor v. TXU Energy Retail Company, LLC
AFFIRM; Opinion issued November 17, 2011
Court of Appeals
Fifth District of Texas at Dallas
MADRASI KISHOR a/k/a KISHOR MADRASI,
INDIVIDUALLY AND d/b/a GUEST MOTEL INN, Appellant
TXU ENERGY RETAIL COMPANY, LLC, Appellee
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
Opinion By Justice FitzGerald
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.
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
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
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
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
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
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
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.
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
For the foregoing reasons, we affirm the judgment of the trial