ALEXANDER SEAH, Appellant v. COVENTRY VILLAGE ASSOCIATION, Appellee

Affirmed and Opinion filed October 24, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00235-CV
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ALEXANDER SEAH, Appellant
V.
COVENTRY VILLAGE ASSOCIATION, Appellee
 
.................................................................
On Appeal from the 192nd District Court
Dallas County, Texas
Trial Court Cause No. 87-12969-K
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O P I N I O N
Before Chief Justice Enoch and Justices Whitham and Ovard
Opinion By Chief Justice Enoch
 
        Alexander Seah appeals a take nothing judgment after jury trial against Coventry Village Association (Association). Seah's suit involved a claim to recover damages for the wrongful termination of electricity services to his condominium by the Association. He asserts ten points of error contending generally that the jury verdict was against the great weight and preponderance of the evidence and that the trial court erred in granting a summary judgment against him as to his Deceptive Trade Practices Act, tortious interference with contract, violation of utility regulations cause of actions, and right of set-off cause of action for the time he was not in possession of his unit. Concluding these points have no merit, we affirm the trial court's judgment.
FACTS
        Seah purchased a condominium unit in the Coventry Village Condominium regime from John Henderson in April of 1986. The Coventry Village Association Declaration and Bylaws provided that owners of the units in the regime had to pay monthly association dues for upkeep of the common elements of the complex. The bylaws provided that failure to pay monthly dues allowed the Association to terminate electricity to any unit upon seven days' notice. Seah made one payment in May 1986, then moved to Houston in July of that year and made no further payments. The unit remained vacant until April of 1987 when Seah subleased the unit. In the meantime, the Association sent numerous letters to Seah demanding payment of back Association dues and warned that failure to pay would result in termination of electricity services. Finally, on April 23, 1987, written notices of the Association's intent to discontinue electricity to Seah's unit were posted on the front door and patio gate of his condominium. On May 2, 1987, the Association discontinued electricity to Seah's unit. This suit followed. The Association defended the correctness of the termination by showing Seah owed the Association for outstanding assessments and that the Association gave Seah the requisite seven days' notice of termination. A jury found that the termination was not wrongful.
WAIVER
        Seah's points of error numbers two, four, five, six, and seven each contain numerous complaints of errors and misconduct during trial, including improper jury argument. The points addressing improper jury argument were not raised in a motion for new trial and, therefore, are waived. Tex. R. Civ. P. 324(b)(5). The other points are multifarious and too general to comply with the general briefing rules. A point of error is multifarious if it embraces more than one specific ground of error. See Kroger Co. v. Cellan, 560 S.W.2d 505, 507 (Tex. Civ. App.--Tyler 1977, writ ref'd n.r.e.); Inman v. Padrezas, 540 S.W.2d 789, 796 (Tex. Civ. App.--Corpus Christi 1976, no writ). Additionally, these points are not supported by argument and authorities. Tex. R. App. P. 74(f). Points of error which are multifarious and not supported by argument and authorities are not proper points for review. See Dan's v. City of San Antonio, 752 S.W.2d 518, 521 (Tex. 1988); Tenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex. 1983). We acknowledge that Seah appears pro se, but this does not relieve him of the responsibility of abiding by the laws and rules of procedure governing the courts of this state. Stein v. Highland Park Ind. School Dist., 574 S.W.2d 807, 808 (Tex. Civ. App.--Texarkana 1978, writ dism'd). We overrule points of error numbers two, four, five, six, and seven.
GREAT WEIGHT AND PREPONDERANCE OF THE EVIDENCE
        Seah's point of error number one complains that the jury's finding that the Association did not cause his electricity to be terminated without the required seven days' written notice as provided in the Association's bylaws was against the overwhelming weight of the evidence. In this case, Seah had the burden to establish the Association did not send him notice. Where the complaining party asserts that a finding is against the great weight and preponderance of the evidence, all of the evidence, both for and against the issue, must be reviewed and a determination made whether the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Poole v. Ford Motor Co., 715 S.W.2d 629, 633-34 (Tex. 1986); In re Kings Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). The record reflects a highly contested trial with conflicting evidence as to whether notice was sent to Mr. Seah. Fact issues were raised, and the jury resolved them adversely to Seah. While there may be some evidence supporting his position, and while this Court might have reached a different conclusion, we are not at liberty to disturb a jury verdict which necessarily rested on the credibility of the witnesses and weight given to their testimony. State and County Mutual Fire Ins. Co. v. Kinner, 314 S.W.2d 871 (Tex. Civ. App.--Waco), aff'd, 159 Tex. 290, 319 S.W.2d 297 (1958). The jury, as exclusive trier of the facts, had the sole responsibility to evaluate the witnesses, their credibility, and the weight given to their testimony. Horvath v. Baylor University Medical Center, 704 S.W.2d 866, 869 (Tex. App.--Dallas 1985, no writ). Point of error number one is overruled.
TEXAS PUBLIC UTILITY REGULATION ACT
        In point of error number three, Seah asserts that the association is subject to the Texas Public Utility Regulation Act, and thereby, any electric service termination had to be implemented in accordance with that Act. The Texas Public Utility Regulation Act and the Public Utility Commission Substantive Rules regulate rates, operations, and services of licensed public utilities. Public utilities include any person, corporation, river authority, or cooperative corporation which, among other things, produces, generates, transmits, distributes, sells, or furnishes electricity. Tex. Publ. Util. & Reg. Act. art 1446(c). Seah has presented no evidence to support his contention that the Association is a public utility. The Association's right to discontinue electricity to Seah's condominium is granted by the Association's Declaration and Bylaws which contain covenants that run with the land. Seah's ownership and use of his condominium is subject to these restrictive covenants and is not governed by any acts regulating public utilities. See Inwood North Homeowners Association, Inc. v. Harris, 736 S.W.2d 632, 635 (Tex. 1987). Point of error number three is overruled.
DTPA
        In Seah's eighth point of error, he claims that he is a consumer under the Texas Deceptive Trade Practices Act and the trial court erred in holding he was not. In order to be a consumer under the DTPA, one must prove that he has sought or acquired goods or services by purchase or lease. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 539 (Tex. 1981). Privity of contract is not required as long as the goods or services sought or acquired form the basis of his complaint. Cameron, 618 S.W.2d at 541. Seah purchased his condominium from a previous owner, John Henderson, not from the Association. The Association was never involved in the sale transaction and had no contact, either directly or indirectly, with Seah. The obligation to become a member of and to pay association dues emanated from the deed which contained covenants running with the land and to which Seah voluntarily became obliged to pay. The obligation did not arise from the seeking or acquiring of goods and services by Seah from the Association. The Association did not voluntarily accept Seah as a member but was required to pursuant to the Association bylaws. We conclude that Seah was not a consumer as defined by the DTPA. See Tex. Bus. & Com. Code Ann. § 17.45(4) (Vernon 1987). Point of error number eight is overruled.
 
TORTIOUS INTERFERENCE
        Seah contends, in point of error number nine, that he has a tortious interference with contract action because, when the Association terminated the electricity to his condominium, this made him lose a sublease with a third party. Seah cites Tex. Bus. & Com. Code Ann. § 39.42 for his authority. Our research has not revealed such a section. Nevertheless, to establish the necessary elements for his claim of tortious interference, Seah had to show that the defendant maliciously interfered with the contractual relationship without legal justification or excuse. Sakowitz, Inc. v. Steck, 669 S.W.2d 105, 107 (Tex. 1984). One is privileged to interfere with a contract of another if it is done in the bona fide exercise of his own rights or if he has an equal or superior right in the subject matter to that of the plaintiff. Sakowitz, 669 S.W.2d at 107. The Association exercised a bona fide right to disconnect Seah's electricity pursuant to the Association's bylaws. We overrule point number nine.
SET-OFF and CREDIT
        Seah's point of error number ten contends that he is entitled to a partial set-off or credit against back dues for the time that he was not living in the condominium. The Texas Condominium Act provides that a unit owner in a condominium regime is responsible for the owner's pro rata share of, among other things, expenses approved by the council of owners. Tex. Prop. Code Ann. § 81.204(a)(3) (Vernon 1984). In accordance with this section, the Association provided within its declaration and bylaws that the electricity would be billed to each homeowner as part of its monthly dues because the Association received only one bill for the entire complex. Both the bylaws and the Act also provide that a condominium owner is not exempt from paying dues to the homeowner's association by waiving the use of common elements or abandoning the unit. Tex. Prop. Code Ann. § 81.204(b). Seah has no right of off-set because of nonuse of his condominium. We overrule point of error number ten.
        The trial court's judgment is AFFIRMED.
 
 
                                                          
                                                          CRAIG TRIVELY ENOCH
                                                          CHIEF JUSTICE
Do Not Publish
Tex. R. App. P. 90
 
890235.U05
 
 
File Date[10-23-89]
File Name[890235]