Arnold Macias v. Texas Department of Criminal Justice Parole Division, Tammy Boddy, Paul Morales, Lana Rhodes, Pat Ivy and Brian Collier, No. 03-07-00033-CV (Tex.App.- Austin, Aug. 21, 2007)(Opinion by Justice Henson ) (pro se suit dismissed, unrepresented litigants held to same standards; denial of free counsel in civil suit was not error)(Before Chief Justice Law, Justices Puryear and Henson)
Appeal from 126th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-04-002558, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Arnold Macias, proceeding pro se, sued the Texas Department of Criminal Justice, along with certain individual employees of the Department, alleging violations of the Texas Penal Code, as well as a charge of civil assault against Department employee Tammy Boddy.
The Department and individual employees specially excepted, arguing that Macias's petition did not plead with sufficient specificity to place them on notice about what actions or omissions were attributed to them. The trial court granted the special exceptions and Macias filed an amended petition, bringing suit against the Department and the individual employees for assault, stalking, abuse of office, abuse of official capacity, official oppression, failure to report assault to a police officer, and removal of government documents.
On August 4, 2005, the trial court dismissed all of Macias's claims other than the claim for civil assault as frivolous under chapter 13 of the civil practices and remedies code. Boddy filed a motion for summary judgment regarding the assault claim, which the trial court granted on October 23, 2006. Macias appeals the dismissal of his claims and the granting of the summary judgment. We affirm the trial court's judgment.
BACKGROUND
Macias's assault claim arises from an incident that took place on March 8, 2004, when Macias visited the parole office to meet with his parole officer, Paul Morales. Macias claims that Boddy, a unit supervisor in the parole office, struck him as he was walking down a hallway to Morales's office. According to Boddy's characterization of the incident, she spoke with Macias in the hallway and then "tapped him on his shoulder and continued to walk down the hall." She asserts that "[t]he tap was a sign of encouragement" and was "meant to be a friendly gesture." Morales, who witnessed the incident, stated that Boddy merely "placed her hand on [Macias's] shoulder for a second" in a gesture that was "not a slap or a punch."
Macias's remaining claims, which he attempted to bring under the Texas Penal Code, arise from other behavior by Department employees, namely Macias's allegations that Paul Morales and Matt Smith refused to allow him access to the law library, that Llana Rhodes removed certain documents related to his electronic-monitoring device from his record, that Morales failed to record Macias's work schedule in his supervised program daily schedule, and that Morales failed to meet the statutory requirements for employment as a parole officer.
Macias, proceeding pro se, asserts that the trial court erred in dismissing a portion of his claims under chapter 13 of the civil practice and remedies code and in granting Boddy's motion for summary judgment on the remaining claim for civil assault. On appeal, Macias also makes a number of procedural complaints, including claims that he was denied assistance of counsel, that he was denied an opportunity for discovery, and that no court reporter was available at his summary-judgment hearing.
DISCUSSION
Dismissal Under Chapter 13
Because Macias is proceeding in forma pauperis, his claims are subject to chapter 13 of the civil practice and remedies code. When an affidavit of inability to pay has been filed, a trial court may dismiss the action on a finding that it is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. § 13.001(a)(1) (West 2002). In determining whether an action is frivolous, the trial court may consider whether (1) the action's realistic chance of ultimate success is slight, (2) the claim has no arguable basis in law or fact, or (3) it is clear that the party cannot prove a set of facts in support of the claim. Id. § 13.001(b). Because the Texas Supreme Court has discouraged reliance on the chances of ultimate success or the party's inability to prove a set of facts in support of the claim, we will focus on whether the claim lacks an arguable basis in law or in fact. See Johnson v. Lynaugh, 796 S.W.2d 705, 706 (Tex. 1990); Brewer v. Collins, 857 S.W.2d 819, 822 (Tex. App.--Houston [1st Dist.] 1993, no writ).
The trial court has broad discretion in determining whether to dismiss a claim as frivolous under § 13.001. Brewer, 857 S.W.2d at 822. A court abuses its discretion when it "acts arbitrarily, capriciously, and without reference to any guiding rules or principles." Id.
Macias attempted to bring his claims, other than his claim for civil assault, under the Texas Penal Code. However, "the Texas Penal Code does not create private causes of action," and as a result, "these allegations fail to state a viable claim for relief." Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex. App.--San Antonio 2002, no pet.). Because those claims brought by Macias under the penal code lack an arguable basis in law, we hold that the trial court did not abuse its discretion by dismissing such claims as frivolous.
Civil Assault
In relation to Macias's civil-assault claim, Boddy filed a joint traditional and no-evidence motion for summary judgment under Texas Rules of Civil Procedure 166a and 166a(i). When multiple grounds for summary judgment are raised and the trial court does not specify the grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the grounds advanced are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
A no-evidence summary judgment is properly granted when there is no evidence of one or more essential elements of a claim on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). In reviewing a no-evidence summary judgment, "the task of the appellate court is to determine whether the plaintiff has produced any evidence of probative force to raise fact issues on the material questions presented." Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex. App.--Austin 1998, no pet.).
In order to establish a claim of civil assault, the complainant must establish the same elements required for criminal assault. Johnson v. Davis, 178 S.W.3d 230, 240 (Tex. App.--Houston [14th Dist.] 2005, pet. denied). There are three avenues by which an assault can occur. See Tex. Penal Code Ann. § 22.01(a) (West Supp. 2006). An assault occurs under § 22.01(a)(1) if a person intentionally, knowingly, or recklessly causes bodily injury to another. Macias presented no evidence that he suffered bodily injury. Under § 22.01(a)(2), an assault occurs when a person intentionally or knowingly threatens another with imminent bodily injury. Again, Macias has not presented evidence that Boddy threatened him with imminent bodily injury. Under § 22.01(a)(3), an assault occurs when a person intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Macias's evidence regarding the alleged assault consists solely of his statement that "Tammy Boddy strikes Arnold Macias [sic] Mar. 8, 2004." Boddy described this contact as a "tap on his arm" that was "meant to be a friendly gesture," and Morales, who witnessed the incident, also described the contact as "friendly" and stated, "I did not believe Macias would consider a simple tap on his should[er] an assault." Macias has not presented evidence that Boddy knew or should have reasonably believed that her contact with Macias would be regarded as offensive or provocative. Because Macias has failed to present evidence of an essential element of his claim, we hold that the trial court did not err by granting Boddy's motion for summary judgment.
Failure to Appoint Counsel
Macias further complains on appeal that he was denied assistance of counsel. The trial court denied Macias's request for appointed counsel, but it is within a trial court's discretion to do so in a civil case. See Tex. Gov't Code Ann. § 24.016 (West 2004); Travelers Indemn. Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996) (holding that there is no constitutional right to counsel in civil proceedings); Lassiter v. Department of Soc. Servs., 452 U.S. 18, 26-27 (1981) ("[A]n indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty."). There is no danger that the outcome of this litigation will cause Macias to be deprived of his physical liberty. As a result, we hold that the trial court did not abuse its discretion in denying Macias appointed counsel.
Lack of a Court Reporter
Macias also complains that there was no court reporter available to record his summary-judgment hearing. However, Macias failed to preserve this issue for appeal. When a party objects to a court reporter's failure to make a record of proceedings, the objection "must be preserved by filing a motion or other written objection." Reyes v. Credit Based Asset Servicing & Securitization, 190 S.W.3d 736, 740 (Tex. App.--San Antonio 2005, no pet.). Furthermore, "litigants who represent themselves must comply with the applicable procedural rules." Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978). Because the clerk's record does not contain a written motion or other objection regarding the court reporter's failure to record the summary-judgment hearing, Macias failed to preserve this issue for appeal.
Even if Macias had properly preserved the issue for appeal, the creation of a reporter's record is "a practice neither necessary nor appropriate to the purposes of such a hearing." McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n.7 (Tex. 1993). At a summary-judgment hearing, a trial court's decision is based solely on written pleadings and evidence, rather than live testimony. Tex. R. Civ. P. 166a(c). Because a reporter's record is not necessary for a summary-judgment hearing, no error is presented.
Miscellaneous Additional Issues
Macias makes a number of additional complaints on appeal, none of which are adequately briefed. He contends that the trial judge and opposing counsel "introduced fabricated or manufactured evidence," that he was denied the opportunity for discovery, and that the trial judge violated various provisions of the Texas Code of Judicial Conduct. Because Macias does not explain or support these contentions, we consider them inadequately briefed and decline to address them. See Tex. R. App. P. 38.1(h). It is well-settled law that "a pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure." Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 677 (Tex. App.--Dallas 2004, pet. denied). Where, as here, an issue on appeal is inadequately briefed, "we cannot speculate as to the substance of the specific issues appellant claims we must address." Id. at 678. Accordingly, we resolve Macias's remaining issues against him.
CONCLUSION
Because the trial court did not err in dismissing a number of Macias's claims under chapter 13 of the civil practices and remedies code or in granting summary judgment on the remaining claim, we affirm the trial court's judgment.
__________________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: August 21, 2007
Tuesday, August 21, 2007
Contract Law: Agreement not ambiguous; ergo parol evidence not to be considered
Jon Maniccia and Southwest Intelecom, Inc. v. John Collins, No. 03-04-00810-CV (Tex.App.- Austin, Aug. 17, 2007)(Opinion by Justice Puryear)(contract construction, no ambiguity found)(Before Chief Justice Law, Justices Patterson and Puryear)
Appeal from 201st District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. GN401779, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
John Collins and Jon Maniccia were the owners of Southwest Intelecom, Inc., ("Intelecom"). As part of its business operations, Intelecom received periodic payments from various collection agencies, including Billing Concepts; Integretel, Inc. ("Integretel"); and Aargon Collection Agency ("Aargon").
In 2002, Collins and Maniccia began having disagreements over how to run Intelecom. As a result of these differences, in July 2002, Collins, Maniccia, and Intelecom entered into a Stock Repurchase Agreement and Mutual Release (the "Agreement") under which Collins agreed to sell all of his stock back to Intelecom. As compensation, Collins was entitled to receive one-half of whatever amount of money Billing Concepts, Integretel, and Aargon paid Intelecom. After the Agreement was signed, Intelecom received $81,000 from Billing Concepts, $42,533.28 from
Integretel, and $7,148.04 from Aargon for a total of $130,681.32.
Collins asked Intelecom to pay him one-half of the amounts paid to Intelecom by the previously mentioned companies, but Intelecom refused to pay him. Eventually, Collins filed suit against Intelecom and Maniccia, seeking to recover one-half of the money received by Intelecom. He also filed a motion for summary judgment, which the district court ultimately granted. In its judgment, the court ordered that Collins was entitled to one-half of the $130,681.32 collected ($65,340.66) plus attorney's fees. Intelecom and Maniccia appeal the judgment of the district court.
STANDARD OF REVIEW
The standards for obtaining a traditional summary judgment are well established: the movant must show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in the nonmovant's favor. Sergeant Enters., Inc. v. Strayhorn, 112 S.W.3d 241, 245 (Tex. App.--Austin 2003, no pet.) (citing Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985)); see Tex. R. Civ. P. 166a(c). If the movant establishes a right to summary judgment, the burden shifts to the nonmovant, who must present summary-judgment evidence to the trial court raising a genuine issue of material fact to preclude summary judgment. Cannon v. Texas Indep. Bank, 1 S.W.3d 218, 223 (Tex. App.--Texarkana 1999, pet. denied). If the evidence raises no more than a surmise or suspicion of a fact in issue, no genuine issue of fact exists to defeat summary judgment. Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 837 (Tex. App.--Dallas 2005, no pet.) (citing Wiggins v. Overstreet, 962 S.W.2d 198, 200 (Tex. App.--Houston [14th Dist.] 1998, writ denied)). We review the trial court's decision to grant summary judgment de novo. Sergeant Enters., Inc., 112 S.W.3d at 245 (citing Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994)).
DISCUSSION
On appeal, Maniccia and Intelecom contend that the district court erred when it granted Collins's summary-judgment motion. Essentially, they argue that the district court improperly interpreted the portion of the Agreement specifying what amounts Collins was entitled to recover. In their first argument, they contend that the Agreement unambiguously requires that certain offsets be applied before Collins recovers his award. Alternatively, Maniccia and Intelecom contend that if the language does not unambiguously require offsets to Collins's recovery, the language is ambiguous as to what effect the listing of certain costs in the Agreement has on Collins's recovery. Because of this ambiguity, they urge this Court to consider extrinsic evidence to ascertain the meaning of the relevant provision, including an email sent by Collins to Intelecom's lawyer.
Determining whether a contract is ambiguous is a question of law for courts to decide. General Agents Ins. Co. v. Arredondo, 52 S.W.3d 762, 766 (Tex. App.--San Antonio 2001, pet. denied). If a contract is subject to more than one reasonable interpretation, then it is ambiguous. Id. However, a contract is unambiguous if it can be given a definite or certain meaning, and conflicting interpretations of a contract by the parties, without more, do not create an ambiguity. See id. If a contract is unambiguous, courts must enforce the contract as written. Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 859 (Tex. App.--Austin 2001, pet. denied). Further, if the contract is unambiguous, parole evidence may not be admitted for the purpose of creating an ambiguity. National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). It is only after a court has determined that an agreement is ambiguous that a court may consider extraneous evidence to determine the meaning of the agreement. Id.
The Agreement explains that Collins was entitled to recover one-half of any money Intelecom "received" from Billing Concepts, Integretel, and Aargon. The relevant portion of the Agreement specifying Collins's compensation provides as follows:
By signing below, Collins agrees to sell his stock to Intelecom for the payment of one-half of any monies received by Intelecom from Billing Concepts, expressly acknowledging that Intelecom may receive no monies from Billing Concepts. . . . To the extent that funds from Billing Concepts are received after the obligation to RFC is satisfied, payment will be made to Collins within fourteen (14) days thereafter. . . . These monies will be the sole amounts to be received by Collins in exchange for his stock, regardless of any other recoveries, payments, profits, or amounts received by Intelecom or Maniccia at any time after the execution of this agreement except as expressly follows: as additional consideration for the stock, Intelecom will also pay one-half of any sums received on account of the billing records sent to Integretel for collection, to include monies received from Aargon, the collection agency presently seeking payment on said reports; as additional consideration for the stock, Intelecom will pay Collins one-half of any sums received on the judgment that has been taken against Frank Murillo in Southwest Intelecom v. Murillo . . . . (Emphasis added.)
However, Maniccia and Intelecom both insist that, under the Agreement, Collins's recovery was subject to offsets both before and after Intelecom received money from Billing Concepts, Integretel, and Aargon. First, Maniccia and Intelecom argue that before paying Intelecom, Billing Concepts was required to apply the money collected to two of Intelecom's financial obligations. The first obligation was to RFC, which is a third-party vendor. The second obligation was to the attorney general. Maniccia and Intelecom insist that the obligation to pay the attorney general resulted from an inquiry made by the Consumer Protection Division and that the payments covered costs incurred through the investigation. They further insist that the district court erred by failing to reduce Collins's recovery to account for these offsets. The portion of the Agreement relevant to this argument provides as follows:
Said payment from Billing Concepts to Intelecom will be made upon full satisfaction of Intelecom's obligations to RFC and the Texas Attorney General's office. . . . Money received from RFC Capital or the Attorney General of Texas on account of overpayment of funds to them by Billing Concepts will be considered monies received from Billing Concepts for purposes of this paragraph.
Collins disagrees with Maniccia and Intelecom's interpretation of the language above. He asserts that the quoted portions of the Agreement only affected the timing of his ultimate recovery, not the amount of his ultimate recovery. Essentially, he argues that the sentence merely described the circumstances under which Billing Concepts was obligated to pay Intelecom and related that Billing Concepts was not obligated to pay Intelecom until after Intelecom had satisfied its own financial obligations to RFC and the attorney general.
As a preliminary matter, we note that the language Maniccia and Intelecom claim proves that Collins's award was subject to pre-payment offsets only refers to payments from Billing Concepts and makes no reference to money Intelecom received from Aargon and Integretel. Consequently, we fail to see how Maniccia and Intelecom's interpretation would justify reducing Collins's entitlement to half the money Aargon and Integretel paid to Intelecom. Regardless, we need not determine which of the parties' competing interpretations correctly reflects their intentions when entering the Agreement.
No matter which interpretation is correct, the Agreement unambiguously states that Collins is entitled to "one-half of any monies received from Billing Concepts," Integretel, and Aargon. It is undisputed that Intelecom received $81,000 from Billing Concepts, $42,533.28 from Integretel, and $7,148.04 from Aargon, and Collins is, therefore, entitled to one-half of the total of those three amounts. If Billing Concepts was under some obligation to apply the money that it collected to satisfy some of Intelecom's financial obligations but failed to comply with that requirement--a determination we cannot make in this appeal--that failure cannot be used to undo the fact that Intelecom received $81,000 from Billing Concepts, nor can it be used to justify a type of after-payment offset not authorized by the Agreement between Collins, Maniccia, and Intelecom.
In addition to before-payment offsets, Maniccia and Intelecom also assert that the Agreement provides for offsets to Collins's recovery that were to be applied after Billing Concepts, Aargon, and Integretel transferred the money they collected to Intelecom and further assert that Collins was only entitled to recover if the amount Intelecom collected was greater than the value of the offsets. Specifically, Maniccia and Intelecom insist that, before paying Collins, they were required to use the money they collected to pay delinquent-contractor commissions and certain legal fees. The portion of the Agreement relevant to this argument provides as follows:
Intelecom further guarantees that--until Collins receives his half--such funds will not be used to satisfy any of its other accumulated debts, aside from delinquent contractor commissions and legal fees incurred solely as a result of the pending Illinois case and the RFC/[Billing Concepts] disputes.
We disagree with Maniccia and Intelecom's interpretation. First, we note that as discussed previously, the relevant sentence quoted above makes no reference to money collected from Aargon and Integretel. The sentence is found immediately after the sentences describing Collins's entitlement to half the money collected from Billing Concepts, and the phrase "such funds" is a specific reference to that money. Moreover, the relevant sentence comes well before the sentence stating that Collins was entitled to one-half of the funds transferred from Aargon and Integretel, and that subsequent sentence provides no modification to Collins's entitlement to those funds. For all these reasons, we believe that the provision previously quoted has no bearing on Collins's entitlement to one-half of the money Intelecom received from Aargon and Integretel.
Second, we also disagree with Maniccia and Intelecom's construction of the sentence as authorizing an offset to Collins's entitlement to the money Intelecom received from Billing Concepts. The primary component of the sentence ensures that before Collins was able to collect his entitlement, Intelecom did not use the money received from Billing Concepts to pay Intelecom's debts. Further, although the sentence does list delinquent-contractor commissions and legal fees as exceptions to this hold requirement, the sentence in no way states that Collins's entitlement to one-half of the money collected from Billing Concepts should be reduced to account for those costs. On the contrary, the sentence again clarifies that Collins is entitled to a full, unadjusted half of the funds received from Billing Concepts by including the phrase "until Collins receives his half" in reference to those funds. While the sentence may have authorized Intelecom to use its one-half of the money received from Billing Concepts to pay delinquent commissions and legal fees, it does not authorize Intelecom to use Collins's half of the funds for these same purposes.
For these reasons, we conclude that the relevant language of the Agreement can be given a definite and certain meaning and is, therefore, unambiguous. Therefore, we need not address Maniccia and Intelecom's alternative assertion that the Agreement is ambiguous and that parole evidence should be used to ascertain the meaning of the Agreement. We further conclude that nothing in the Agreement authorizes a reduction to Collins's entitlement to the money Intelecom received from Aargon and Integretel and that the Agreement does not allow for offsets to Collins's recovery after Intelecom received money from Billing Concepts. In light of the preceding, we must conclude that there is no genuine issue of material fact relating to Collins's recovery and that he was entitled to one half of the money collected from Billing Concepts, Integretel, and Aargon as a matter of law. Accordingly, we affirm the judgment of the district court.
David Puryear, Justice
Before Chief Justice Law, Justices Patterson and Puryear
Affirmed
Filed: August 17, 2007
Appeal from 201st District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. GN401779, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
John Collins and Jon Maniccia were the owners of Southwest Intelecom, Inc., ("Intelecom"). As part of its business operations, Intelecom received periodic payments from various collection agencies, including Billing Concepts; Integretel, Inc. ("Integretel"); and Aargon Collection Agency ("Aargon").
In 2002, Collins and Maniccia began having disagreements over how to run Intelecom. As a result of these differences, in July 2002, Collins, Maniccia, and Intelecom entered into a Stock Repurchase Agreement and Mutual Release (the "Agreement") under which Collins agreed to sell all of his stock back to Intelecom. As compensation, Collins was entitled to receive one-half of whatever amount of money Billing Concepts, Integretel, and Aargon paid Intelecom. After the Agreement was signed, Intelecom received $81,000 from Billing Concepts, $42,533.28 from
Integretel, and $7,148.04 from Aargon for a total of $130,681.32.
Collins asked Intelecom to pay him one-half of the amounts paid to Intelecom by the previously mentioned companies, but Intelecom refused to pay him. Eventually, Collins filed suit against Intelecom and Maniccia, seeking to recover one-half of the money received by Intelecom. He also filed a motion for summary judgment, which the district court ultimately granted. In its judgment, the court ordered that Collins was entitled to one-half of the $130,681.32 collected ($65,340.66) plus attorney's fees. Intelecom and Maniccia appeal the judgment of the district court.
STANDARD OF REVIEW
The standards for obtaining a traditional summary judgment are well established: the movant must show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in the nonmovant's favor. Sergeant Enters., Inc. v. Strayhorn, 112 S.W.3d 241, 245 (Tex. App.--Austin 2003, no pet.) (citing Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985)); see Tex. R. Civ. P. 166a(c). If the movant establishes a right to summary judgment, the burden shifts to the nonmovant, who must present summary-judgment evidence to the trial court raising a genuine issue of material fact to preclude summary judgment. Cannon v. Texas Indep. Bank, 1 S.W.3d 218, 223 (Tex. App.--Texarkana 1999, pet. denied). If the evidence raises no more than a surmise or suspicion of a fact in issue, no genuine issue of fact exists to defeat summary judgment. Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 837 (Tex. App.--Dallas 2005, no pet.) (citing Wiggins v. Overstreet, 962 S.W.2d 198, 200 (Tex. App.--Houston [14th Dist.] 1998, writ denied)). We review the trial court's decision to grant summary judgment de novo. Sergeant Enters., Inc., 112 S.W.3d at 245 (citing Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994)).
DISCUSSION
On appeal, Maniccia and Intelecom contend that the district court erred when it granted Collins's summary-judgment motion. Essentially, they argue that the district court improperly interpreted the portion of the Agreement specifying what amounts Collins was entitled to recover. In their first argument, they contend that the Agreement unambiguously requires that certain offsets be applied before Collins recovers his award. Alternatively, Maniccia and Intelecom contend that if the language does not unambiguously require offsets to Collins's recovery, the language is ambiguous as to what effect the listing of certain costs in the Agreement has on Collins's recovery. Because of this ambiguity, they urge this Court to consider extrinsic evidence to ascertain the meaning of the relevant provision, including an email sent by Collins to Intelecom's lawyer.
Determining whether a contract is ambiguous is a question of law for courts to decide. General Agents Ins. Co. v. Arredondo, 52 S.W.3d 762, 766 (Tex. App.--San Antonio 2001, pet. denied). If a contract is subject to more than one reasonable interpretation, then it is ambiguous. Id. However, a contract is unambiguous if it can be given a definite or certain meaning, and conflicting interpretations of a contract by the parties, without more, do not create an ambiguity. See id. If a contract is unambiguous, courts must enforce the contract as written. Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 859 (Tex. App.--Austin 2001, pet. denied). Further, if the contract is unambiguous, parole evidence may not be admitted for the purpose of creating an ambiguity. National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). It is only after a court has determined that an agreement is ambiguous that a court may consider extraneous evidence to determine the meaning of the agreement. Id.
The Agreement explains that Collins was entitled to recover one-half of any money Intelecom "received" from Billing Concepts, Integretel, and Aargon. The relevant portion of the Agreement specifying Collins's compensation provides as follows:
By signing below, Collins agrees to sell his stock to Intelecom for the payment of one-half of any monies received by Intelecom from Billing Concepts, expressly acknowledging that Intelecom may receive no monies from Billing Concepts. . . . To the extent that funds from Billing Concepts are received after the obligation to RFC is satisfied, payment will be made to Collins within fourteen (14) days thereafter. . . . These monies will be the sole amounts to be received by Collins in exchange for his stock, regardless of any other recoveries, payments, profits, or amounts received by Intelecom or Maniccia at any time after the execution of this agreement except as expressly follows: as additional consideration for the stock, Intelecom will also pay one-half of any sums received on account of the billing records sent to Integretel for collection, to include monies received from Aargon, the collection agency presently seeking payment on said reports; as additional consideration for the stock, Intelecom will pay Collins one-half of any sums received on the judgment that has been taken against Frank Murillo in Southwest Intelecom v. Murillo . . . . (Emphasis added.)
However, Maniccia and Intelecom both insist that, under the Agreement, Collins's recovery was subject to offsets both before and after Intelecom received money from Billing Concepts, Integretel, and Aargon. First, Maniccia and Intelecom argue that before paying Intelecom, Billing Concepts was required to apply the money collected to two of Intelecom's financial obligations. The first obligation was to RFC, which is a third-party vendor. The second obligation was to the attorney general. Maniccia and Intelecom insist that the obligation to pay the attorney general resulted from an inquiry made by the Consumer Protection Division and that the payments covered costs incurred through the investigation. They further insist that the district court erred by failing to reduce Collins's recovery to account for these offsets. The portion of the Agreement relevant to this argument provides as follows:
Said payment from Billing Concepts to Intelecom will be made upon full satisfaction of Intelecom's obligations to RFC and the Texas Attorney General's office. . . . Money received from RFC Capital or the Attorney General of Texas on account of overpayment of funds to them by Billing Concepts will be considered monies received from Billing Concepts for purposes of this paragraph.
Collins disagrees with Maniccia and Intelecom's interpretation of the language above. He asserts that the quoted portions of the Agreement only affected the timing of his ultimate recovery, not the amount of his ultimate recovery. Essentially, he argues that the sentence merely described the circumstances under which Billing Concepts was obligated to pay Intelecom and related that Billing Concepts was not obligated to pay Intelecom until after Intelecom had satisfied its own financial obligations to RFC and the attorney general.
As a preliminary matter, we note that the language Maniccia and Intelecom claim proves that Collins's award was subject to pre-payment offsets only refers to payments from Billing Concepts and makes no reference to money Intelecom received from Aargon and Integretel. Consequently, we fail to see how Maniccia and Intelecom's interpretation would justify reducing Collins's entitlement to half the money Aargon and Integretel paid to Intelecom. Regardless, we need not determine which of the parties' competing interpretations correctly reflects their intentions when entering the Agreement.
No matter which interpretation is correct, the Agreement unambiguously states that Collins is entitled to "one-half of any monies received from Billing Concepts," Integretel, and Aargon. It is undisputed that Intelecom received $81,000 from Billing Concepts, $42,533.28 from Integretel, and $7,148.04 from Aargon, and Collins is, therefore, entitled to one-half of the total of those three amounts. If Billing Concepts was under some obligation to apply the money that it collected to satisfy some of Intelecom's financial obligations but failed to comply with that requirement--a determination we cannot make in this appeal--that failure cannot be used to undo the fact that Intelecom received $81,000 from Billing Concepts, nor can it be used to justify a type of after-payment offset not authorized by the Agreement between Collins, Maniccia, and Intelecom.
In addition to before-payment offsets, Maniccia and Intelecom also assert that the Agreement provides for offsets to Collins's recovery that were to be applied after Billing Concepts, Aargon, and Integretel transferred the money they collected to Intelecom and further assert that Collins was only entitled to recover if the amount Intelecom collected was greater than the value of the offsets. Specifically, Maniccia and Intelecom insist that, before paying Collins, they were required to use the money they collected to pay delinquent-contractor commissions and certain legal fees. The portion of the Agreement relevant to this argument provides as follows:
Intelecom further guarantees that--until Collins receives his half--such funds will not be used to satisfy any of its other accumulated debts, aside from delinquent contractor commissions and legal fees incurred solely as a result of the pending Illinois case and the RFC/[Billing Concepts] disputes.
We disagree with Maniccia and Intelecom's interpretation. First, we note that as discussed previously, the relevant sentence quoted above makes no reference to money collected from Aargon and Integretel. The sentence is found immediately after the sentences describing Collins's entitlement to half the money collected from Billing Concepts, and the phrase "such funds" is a specific reference to that money. Moreover, the relevant sentence comes well before the sentence stating that Collins was entitled to one-half of the funds transferred from Aargon and Integretel, and that subsequent sentence provides no modification to Collins's entitlement to those funds. For all these reasons, we believe that the provision previously quoted has no bearing on Collins's entitlement to one-half of the money Intelecom received from Aargon and Integretel.
Second, we also disagree with Maniccia and Intelecom's construction of the sentence as authorizing an offset to Collins's entitlement to the money Intelecom received from Billing Concepts. The primary component of the sentence ensures that before Collins was able to collect his entitlement, Intelecom did not use the money received from Billing Concepts to pay Intelecom's debts. Further, although the sentence does list delinquent-contractor commissions and legal fees as exceptions to this hold requirement, the sentence in no way states that Collins's entitlement to one-half of the money collected from Billing Concepts should be reduced to account for those costs. On the contrary, the sentence again clarifies that Collins is entitled to a full, unadjusted half of the funds received from Billing Concepts by including the phrase "until Collins receives his half" in reference to those funds. While the sentence may have authorized Intelecom to use its one-half of the money received from Billing Concepts to pay delinquent commissions and legal fees, it does not authorize Intelecom to use Collins's half of the funds for these same purposes.
For these reasons, we conclude that the relevant language of the Agreement can be given a definite and certain meaning and is, therefore, unambiguous. Therefore, we need not address Maniccia and Intelecom's alternative assertion that the Agreement is ambiguous and that parole evidence should be used to ascertain the meaning of the Agreement. We further conclude that nothing in the Agreement authorizes a reduction to Collins's entitlement to the money Intelecom received from Aargon and Integretel and that the Agreement does not allow for offsets to Collins's recovery after Intelecom received money from Billing Concepts. In light of the preceding, we must conclude that there is no genuine issue of material fact relating to Collins's recovery and that he was entitled to one half of the money collected from Billing Concepts, Integretel, and Aargon as a matter of law. Accordingly, we affirm the judgment of the district court.
David Puryear, Justice
Before Chief Justice Law, Justices Patterson and Puryear
Affirmed
Filed: August 17, 2007
Trial court should have DWOPPED case, rather than entering a default judgment against no-show plaintiff
Austin Court of Appeals holds that court should not have reached the merits and reforms judgment to reflect a dismissal for want of prosecution (DWOP).
Edith Fontenot v. Margaret Hanus, Michael Hanus, and William S. Carver, III, No. 03-05-00551-CV (Tex.App.- Austin, Aug. 17, 2007)(Opinion by Justice Puryear )(default judgment improperly granted for plaintiff's failure to appear)(Before Chief Justice Law, Justices Puryear and Pemberton)
Appeal from 201st District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. GN403516, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Edith Fontenot, representing herself pro se, sued appellees Margaret Hanus, Michael Hanus, and William S. Carver, III, seeking a judgment declaring that she had the right to use a road on appellees' property to access her land. The case was set for a jury trial on May 23, 2005, but on May 11, 2005, appellees filed a motion for continuance and to strike the May 23 setting, stating that Fontenot had not met the requirements for a jury trial or paid the jury fee and that the case had not been referred to pretrial mediation as required by the Travis County Local Rules. On May 19, a hearing was held on the motion, and the trial court denied the motion for continuance; it appears that Fontenot paid the jury fee that same day.
On May 23, Fontenot did not appear at the 9:00 a.m. docket call, and the trial court signed a default judgment against her, denying Fontenot access to her property across appellees' property.
On June 22, thirty days after the default judgment was signed, Fontenot filed a motion for new trial, asserting that she had arrived late to court on May 23, only to learn that the docket had been called promptly at 9:00 a.m. and that a default judgment had been granted in her case.
She explained that she misunderstood the docket-call process and asked to have her case reinstated. Appellees filed a response to Fontenot's motion, and after a hearing, the trial court denied Fontenot's motion for new trial. It is from the denial of her motion for new trial that Fontenot appeals, complaining largely that the trial court erred in refusing to grant her a new trial. (1) We modify the trial court's default judgment to reflect instead a dismissal for want of prosecution and affirm the judgment as modified.
The trial court entered a "default judgment" purporting to decide the merits of the case. See Tex. R. Civ. P. 239. However, when a plaintiff fails to appear, the trial court may not enter a default judgment against her and may only dismiss the cause without prejudice. Freeman v. Freeman, 327 S.W.2d 428, 431 (Tex. 1959) ("The law of this state does not authorize a defendant to take a default judgment which adjudicates against the plaintiff the merits of his suit."); Smock v. Fischel, 207 S.W.2d 891, 892 (Tex. 1948) ("It is a well-established rule that when a plaintiff fails to appear and prosecute his case, the court can not try the plaintiff's cause of action, but the only remedy is to dismiss the same."); State v. Herrera, 25 S.W.3d 326, 328 (Tex. App.--Austin 2000, no pet.).
Because Fontenot failed to appear at the May 23 docket call, the trial court could have dismissed her case for want of prosecution. See Tex. R. Civ. P. 165a(1). The court was not, however, authorized to enter a default judgment against her. Therefore, we modify the default judgment to reflect a dismissal under rule 165a(1). See Tex. R. App. P. 43.2(b), 43.3.
As for Fontenot's issues on appeal, we note that Fontenot's brief does not comply with the rules of appellate procedure. Aside from referring to Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939), for its discussion of when a motion for new trial should be granted, she cites no authority and presents virtually no argument. We recognize that Fontenot is representing herself pro se, and we therefore will attempt to read her brief liberally to address the arguments she presents. However, pro se litigants must comply with the same procedural rules followed by represented parties, and we cannot hold pro se litigants to a different standard than applied to represented parties. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).
Fontenot lists nine "issues presented," but does not present argument on all issues, instead focusing what little argument she makes on whether the trial court should have granted her motion for new trial. However, Fontenot did not present any evidence before the trial court to support her assertions that her failure to appear was unintentional and not the result of conscious indifference, either in an affidavit attached to her motion or through sworn testimony at the hearing. Thus, the trial court did not abuse its discretion in denying Fontenot's motion for new trial. See Director, St. Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994).
As for Fontenot's unbriefed issues, we will briefly address them as best we understand them. Fontenot asserts that the trial court used inconsistent docket call procedures, but does not explain how the trial court erred and has not shown any inconsistent practices. (2) Instead, the hearing before the trial court shows that Fontenot admitted to misunderstanding the docket call process. Fontenot further complains that the trial court should not have allowed appellees to rely on an unpublished case from this Court. However, the case to which appellees referred, Limestone Construction, Inc. v. Summit Commercial Industrial Properties, Inc., is a published opinion. See 143 S.W.3d 538 (Tex. App.--Austin 2004, no pet.). (3) As for Fontenot's complaints related to the trial court's allowing appellees to present evidence of Fontenot's alleged conduct during the lawsuit and its refusal to allow her to present evidence of appellees' conduct, she has not briefed this issue or shown that the trial court erred in its management of the hearing on her motion for new trial.
Finally, Fontenot asserts that the trial court erred in telling her she could not refile her lawsuit, which she states amounted to a dismissal with prejudice. Because we have modified the judgment to reflect a dismissal for want of prosecution, rather than a default judgment, any error in the trial court's statement has been addressed.
The trial court erred in granting a default judgment in favor of appellees, rather than simply dismissing the suit under rule 165(a). We therefore modify the judgment to reflect a dismissal for want of prosecution. Fontenot has not shown reversible error on the trial court's part, and we therefore affirm the judgment as modified.
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Modified and, as Modified, Affirmed
Filed: August 17, 2007
1. Appellees have not filed a brief in this case.
2. Fontenot has attached to her brief an affidavit attempting to explain what she characterizes as inconsistent practices. However, she did not present this affidavit before the trial court, and we therefore may not consider it. See Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 342 n.2 (Tex. App.--Houston [14th Dist.] 2003, no pet.). We note, however, that the affidavit does not show any improper or inconsistent practices by the trial court.
3. Under the rules of appellate procedure, opinions are no longer "published" or "unpublished." Instead, they are designated "memorandum opinions" or "opinions." See Tex. R. App. P. 47.2(a).
Edith Fontenot v. Margaret Hanus, Michael Hanus, and William S. Carver, III, No. 03-05-00551-CV (Tex.App.- Austin, Aug. 17, 2007)(Opinion by Justice Puryear )(default judgment improperly granted for plaintiff's failure to appear)(Before Chief Justice Law, Justices Puryear and Pemberton)
Appeal from 201st District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. GN403516, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Edith Fontenot, representing herself pro se, sued appellees Margaret Hanus, Michael Hanus, and William S. Carver, III, seeking a judgment declaring that she had the right to use a road on appellees' property to access her land. The case was set for a jury trial on May 23, 2005, but on May 11, 2005, appellees filed a motion for continuance and to strike the May 23 setting, stating that Fontenot had not met the requirements for a jury trial or paid the jury fee and that the case had not been referred to pretrial mediation as required by the Travis County Local Rules. On May 19, a hearing was held on the motion, and the trial court denied the motion for continuance; it appears that Fontenot paid the jury fee that same day.
On May 23, Fontenot did not appear at the 9:00 a.m. docket call, and the trial court signed a default judgment against her, denying Fontenot access to her property across appellees' property.
On June 22, thirty days after the default judgment was signed, Fontenot filed a motion for new trial, asserting that she had arrived late to court on May 23, only to learn that the docket had been called promptly at 9:00 a.m. and that a default judgment had been granted in her case.
She explained that she misunderstood the docket-call process and asked to have her case reinstated. Appellees filed a response to Fontenot's motion, and after a hearing, the trial court denied Fontenot's motion for new trial. It is from the denial of her motion for new trial that Fontenot appeals, complaining largely that the trial court erred in refusing to grant her a new trial. (1) We modify the trial court's default judgment to reflect instead a dismissal for want of prosecution and affirm the judgment as modified.
The trial court entered a "default judgment" purporting to decide the merits of the case. See Tex. R. Civ. P. 239. However, when a plaintiff fails to appear, the trial court may not enter a default judgment against her and may only dismiss the cause without prejudice. Freeman v. Freeman, 327 S.W.2d 428, 431 (Tex. 1959) ("The law of this state does not authorize a defendant to take a default judgment which adjudicates against the plaintiff the merits of his suit."); Smock v. Fischel, 207 S.W.2d 891, 892 (Tex. 1948) ("It is a well-established rule that when a plaintiff fails to appear and prosecute his case, the court can not try the plaintiff's cause of action, but the only remedy is to dismiss the same."); State v. Herrera, 25 S.W.3d 326, 328 (Tex. App.--Austin 2000, no pet.).
Because Fontenot failed to appear at the May 23 docket call, the trial court could have dismissed her case for want of prosecution. See Tex. R. Civ. P. 165a(1). The court was not, however, authorized to enter a default judgment against her. Therefore, we modify the default judgment to reflect a dismissal under rule 165a(1). See Tex. R. App. P. 43.2(b), 43.3.
As for Fontenot's issues on appeal, we note that Fontenot's brief does not comply with the rules of appellate procedure. Aside from referring to Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939), for its discussion of when a motion for new trial should be granted, she cites no authority and presents virtually no argument. We recognize that Fontenot is representing herself pro se, and we therefore will attempt to read her brief liberally to address the arguments she presents. However, pro se litigants must comply with the same procedural rules followed by represented parties, and we cannot hold pro se litigants to a different standard than applied to represented parties. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).
Fontenot lists nine "issues presented," but does not present argument on all issues, instead focusing what little argument she makes on whether the trial court should have granted her motion for new trial. However, Fontenot did not present any evidence before the trial court to support her assertions that her failure to appear was unintentional and not the result of conscious indifference, either in an affidavit attached to her motion or through sworn testimony at the hearing. Thus, the trial court did not abuse its discretion in denying Fontenot's motion for new trial. See Director, St. Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994).
As for Fontenot's unbriefed issues, we will briefly address them as best we understand them. Fontenot asserts that the trial court used inconsistent docket call procedures, but does not explain how the trial court erred and has not shown any inconsistent practices. (2) Instead, the hearing before the trial court shows that Fontenot admitted to misunderstanding the docket call process. Fontenot further complains that the trial court should not have allowed appellees to rely on an unpublished case from this Court. However, the case to which appellees referred, Limestone Construction, Inc. v. Summit Commercial Industrial Properties, Inc., is a published opinion. See 143 S.W.3d 538 (Tex. App.--Austin 2004, no pet.). (3) As for Fontenot's complaints related to the trial court's allowing appellees to present evidence of Fontenot's alleged conduct during the lawsuit and its refusal to allow her to present evidence of appellees' conduct, she has not briefed this issue or shown that the trial court erred in its management of the hearing on her motion for new trial.
Finally, Fontenot asserts that the trial court erred in telling her she could not refile her lawsuit, which she states amounted to a dismissal with prejudice. Because we have modified the judgment to reflect a dismissal for want of prosecution, rather than a default judgment, any error in the trial court's statement has been addressed.
The trial court erred in granting a default judgment in favor of appellees, rather than simply dismissing the suit under rule 165(a). We therefore modify the judgment to reflect a dismissal for want of prosecution. Fontenot has not shown reversible error on the trial court's part, and we therefore affirm the judgment as modified.
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Modified and, as Modified, Affirmed
Filed: August 17, 2007
1. Appellees have not filed a brief in this case.
2. Fontenot has attached to her brief an affidavit attempting to explain what she characterizes as inconsistent practices. However, she did not present this affidavit before the trial court, and we therefore may not consider it. See Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 342 n.2 (Tex. App.--Houston [14th Dist.] 2003, no pet.). We note, however, that the affidavit does not show any improper or inconsistent practices by the trial court.
3. Under the rules of appellate procedure, opinions are no longer "published" or "unpublished." Instead, they are designated "memorandum opinions" or "opinions." See Tex. R. App. P. 47.2(a).
Short-shrift Petition Disposal: Justice Patterson denies mandamus relief in "opinion" consisting of eight words and one citation
In re Johnny Valchar, No. 03-07-00259-CV (Tex.App.- Austin, Aug. 17)(Opinion by Justice Patterson)(Before Justices Patterson, Puryear and Pemberton)
Appeal from 277th District Court of Williamson County
ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY
M E M O R A N D U M O P I N I O N
The petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Filed: August 17, 2007
Appeal from 277th District Court of Williamson County
ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY
M E M O R A N D U M O P I N I O N
The petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Filed: August 17, 2007
Third Court of Appeals enforces forum selection and choice-of-law clause in licensing agreement; grants mandamus in suit against software company
In re Onsite Software, Inc, No. 03-07-00351-CV (Tex.App.- Austin, Aug. 17, 2007)(Opinion by Justice Henson)(contractual forum selection clause enforced by mandamus) (Before Chief Justice Law, Justices Puryear and Henson)
Appeal from County Court at Law No. 1 of Travis County
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
M E M O R A N D U M O P I N I O N
The trial court denied a motion to enforce a contractual provision requiring the parties to litigate all disputes in New Jersey. The Texas Supreme Court has held that failure to enforce such an agreement "constitutes a clear abuse of discretion for which there is no adequate remedy by appeal." In re Automated Collection Techs. Inc., 156 S.W.3d 557, 558 (Tex. 2004). As a result, we conditionally grant Ace's petition for writ of mandamus directing the trial court to dismiss this case.
On December 8, 2006, Ace Fire Equipment Co. sued Onsite Software, Inc. for breach of contract, common-law fraud, violations of the Texas Deceptive Trade Practices Act, and declaratory judgment--all arising from a license agreement providing for the use and support of a software product. The license agreement in question contains a forum-selection provision, subsection 12(d), which states:
This license agreement is governed and construed in accordance with the laws of the state of New Jersey. It is agreed that the exclusive jurisdiction with regard to any dispute arising out of this Agreement are [sic] the state and federal courts located there.
Ace filed suit in Travis County, Texas, and Onsite subsequently filed a motion to dismiss based on the foregoing forum-selection clause. The trial court held a hearing on the motion to dismiss on May 30, 2007. Ace filed no response to Onsite's motion and did not submit documents or affidavits in opposition to the motion at the hearing. The trial court overruled the motion to dismiss, and Onsite now seeks mandamus relief from this Court.
In In re AIU Insurance Co., 148 S.W.3d 109 (Tex. 2004), the Texas Supreme Court held that enforcement of forum-selection clauses is mandatory unless the party opposing enforcement "clearly show[s] that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching." Id. at 112 (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)).
Ace has not submitted evidence showing that enforcement of the clause would be unreasonable and does not assert that the clause is invalid. As a result, the trial court was required to enforce the forum-selection clause. Because the court failed to do so, mandamus relief is warranted. See id. at 120 (holding that mandamus relief is proper avenue for enforcing forum-selection clauses because there is no adequate remedy by appeal).
Ace contends that Onsite's petition for writ of mandamus should be denied because Onsite failed to include a statement that no testimony was adduced at the hearing on its motion to dismiss, as required by Texas Rule of Appellate Procedure 52.7(a). However, because Onsite has supplemented the record, as permitted by Texas Rule of Appellate Procedure 52.7(b), to include a statement that no testimony was adduced at the hearing, we will not deny Onsite's petition on such grounds.
Ace also argues that at the hearing on the motion to dismiss, Onsite failed to present evidence of the threshold issue that the parties had consented to a forum-selection clause. We disagree.
Prior to the hearing, Onsite filed the affidavit of Michael Paolini, the president of Onsite, in support of its motion to dismiss. This affidavit included both the license agreement and a related software proposal as exhibits. The affidavit, the license agreement, and the software proposal could each be considered evidence suggesting that the parties consented to a forum-selection clause. The trial court's order on Onsite's motion to dismiss states that "after reviewing the papers and pleadings on file in this matter and hearing argument of counsel," the court finds that the motion should be overruled. The order indicates that Paolini's affidavit, as well as the license agreement and software proposal, were reviewed by the trial court in relation to the motion to dismiss.
Ace argues that the forum-selection clause does not apply to the instant case because the underlying dispute does not arise from the license agreement, but from an agreement between Ace and Onsite for both software products and integration and consulting services. Ace asserts that this agreement is evidenced by the software proposal sent to Ace by Onsite and attached to Paolini's affidavit. This proposal, titled "Life Safety Inspector Software Proposal," includes the statement, "Purchase is subject to our standard software license agreement." The proposal also notes that "[i]ntegration and professional services are a key part of making [the software] effective for your company." It is clear from the software proposal that the agreement in question is primarily an agreement concerning the software, and any ancillary services provided will be related to use of the software. Subsection 12(a) of the license agreement states,
"This written license agreement is the exclusive agreement between you and us concerning the Software and Documentation and supersedes any and all prior oral or written agreements, negotiations or other dealings between us concerning the Software." The license agreement also states in section 10 that it covers "support and updates to the software." Because the license agreement by its terms is clearly the sole written agreement between Ace and Onsite, covering both software products and related services, we hold that the forum-selection clause in subsection 12(d) of the license agreement applies to the underlying dispute.
For the foregoing reasons, we conditionally grant Onsite's petition for writ of mandamus directing the trial court to dismiss this case. Writ will issue only in the unlikely event that the trial court does not act in accordance with this opinion.
__________________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Filed: August 17, 2007
Appeal from County Court at Law No. 1 of Travis County
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
M E M O R A N D U M O P I N I O N
The trial court denied a motion to enforce a contractual provision requiring the parties to litigate all disputes in New Jersey. The Texas Supreme Court has held that failure to enforce such an agreement "constitutes a clear abuse of discretion for which there is no adequate remedy by appeal." In re Automated Collection Techs. Inc., 156 S.W.3d 557, 558 (Tex. 2004). As a result, we conditionally grant Ace's petition for writ of mandamus directing the trial court to dismiss this case.
On December 8, 2006, Ace Fire Equipment Co. sued Onsite Software, Inc. for breach of contract, common-law fraud, violations of the Texas Deceptive Trade Practices Act, and declaratory judgment--all arising from a license agreement providing for the use and support of a software product. The license agreement in question contains a forum-selection provision, subsection 12(d), which states:
This license agreement is governed and construed in accordance with the laws of the state of New Jersey. It is agreed that the exclusive jurisdiction with regard to any dispute arising out of this Agreement are [sic] the state and federal courts located there.
Ace filed suit in Travis County, Texas, and Onsite subsequently filed a motion to dismiss based on the foregoing forum-selection clause. The trial court held a hearing on the motion to dismiss on May 30, 2007. Ace filed no response to Onsite's motion and did not submit documents or affidavits in opposition to the motion at the hearing. The trial court overruled the motion to dismiss, and Onsite now seeks mandamus relief from this Court.
In In re AIU Insurance Co., 148 S.W.3d 109 (Tex. 2004), the Texas Supreme Court held that enforcement of forum-selection clauses is mandatory unless the party opposing enforcement "clearly show[s] that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching." Id. at 112 (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)).
Ace has not submitted evidence showing that enforcement of the clause would be unreasonable and does not assert that the clause is invalid. As a result, the trial court was required to enforce the forum-selection clause. Because the court failed to do so, mandamus relief is warranted. See id. at 120 (holding that mandamus relief is proper avenue for enforcing forum-selection clauses because there is no adequate remedy by appeal).
Ace contends that Onsite's petition for writ of mandamus should be denied because Onsite failed to include a statement that no testimony was adduced at the hearing on its motion to dismiss, as required by Texas Rule of Appellate Procedure 52.7(a). However, because Onsite has supplemented the record, as permitted by Texas Rule of Appellate Procedure 52.7(b), to include a statement that no testimony was adduced at the hearing, we will not deny Onsite's petition on such grounds.
Ace also argues that at the hearing on the motion to dismiss, Onsite failed to present evidence of the threshold issue that the parties had consented to a forum-selection clause. We disagree.
Prior to the hearing, Onsite filed the affidavit of Michael Paolini, the president of Onsite, in support of its motion to dismiss. This affidavit included both the license agreement and a related software proposal as exhibits. The affidavit, the license agreement, and the software proposal could each be considered evidence suggesting that the parties consented to a forum-selection clause. The trial court's order on Onsite's motion to dismiss states that "after reviewing the papers and pleadings on file in this matter and hearing argument of counsel," the court finds that the motion should be overruled. The order indicates that Paolini's affidavit, as well as the license agreement and software proposal, were reviewed by the trial court in relation to the motion to dismiss.
Ace argues that the forum-selection clause does not apply to the instant case because the underlying dispute does not arise from the license agreement, but from an agreement between Ace and Onsite for both software products and integration and consulting services. Ace asserts that this agreement is evidenced by the software proposal sent to Ace by Onsite and attached to Paolini's affidavit. This proposal, titled "Life Safety Inspector Software Proposal," includes the statement, "Purchase is subject to our standard software license agreement." The proposal also notes that "[i]ntegration and professional services are a key part of making [the software] effective for your company." It is clear from the software proposal that the agreement in question is primarily an agreement concerning the software, and any ancillary services provided will be related to use of the software. Subsection 12(a) of the license agreement states,
"This written license agreement is the exclusive agreement between you and us concerning the Software and Documentation and supersedes any and all prior oral or written agreements, negotiations or other dealings between us concerning the Software." The license agreement also states in section 10 that it covers "support and updates to the software." Because the license agreement by its terms is clearly the sole written agreement between Ace and Onsite, covering both software products and related services, we hold that the forum-selection clause in subsection 12(d) of the license agreement applies to the underlying dispute.
For the foregoing reasons, we conditionally grant Onsite's petition for writ of mandamus directing the trial court to dismiss this case. Writ will issue only in the unlikely event that the trial court does not act in accordance with this opinion.
__________________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Filed: August 17, 2007
Mandamus denied in minimalist memorandum opinion
In re Steve Bauserman, No. 03-07-00362-CV (Tex.App.- Austin, Aug. 17, 2007(Opinion by Chief Justice Law)(Before Chief Justice Law, Justices Pemberton and Waldrop)
Appeal from 353rd District Court of Travis County]
M E M O R A N D U M O P I N I O N
Relator Steve Bauserman has filed a petition for a writ of mandamus challenging the district court's May 29, 2007 order on his motion to compel production of documents. We deny the petition for writ of mandamus. Tex. R. App. P. 52.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Filed: August 17, 2007
Appeal from 353rd District Court of Travis County]
M E M O R A N D U M O P I N I O N
Relator Steve Bauserman has filed a petition for a writ of mandamus challenging the district court's May 29, 2007 order on his motion to compel production of documents. We deny the petition for writ of mandamus. Tex. R. App. P. 52.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Filed: August 17, 2007
Pierce vs. Austin Edwards Construction - Appeal dismissed
Rodger Pierce a/k/a Roger Pierce v. Mark Edwards d/b/a The Austin Edwards Company and The Austin Edwards Construction Company et al, No. 03-07-00403-CV (Tex.App.- Austin, Aug. 17, 2007)(Opinion by Justice Patterson) (Before Justices Patterson, Puryear and Pemberton)
Appeal from 98th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. GN504202, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Rodger Pierce a/k/a Roger Pierce has filed an unopposed motion seeking dismissal of his appeal. We grant the motion and dismiss the appeal. See Tex. R. App. P. 42.1(a)(1).
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Dismissed on Appellant's Motion
Filed: August 17, 2007
Appeal from 98th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. GN504202, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Rodger Pierce a/k/a Roger Pierce has filed an unopposed motion seeking dismissal of his appeal. We grant the motion and dismiss the appeal. See Tex. R. App. P. 42.1(a)(1).
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Dismissed on Appellant's Motion
Filed: August 17, 2007
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