J. Parra e Hijos, S.A. de C.V. v. Barroso

• Decision Date: 30 October 1997
• Docket Number: No. 13-96-290-CV,13-96-290-CV
• Citation: 960 S.W.2d 161
• Parties: J. PARRA e HIJOS, S.A. de C.V., Appellant, v. Rafael BARROSO, Appellee.
• Court: Texas Court of Appeals

Page 161

960 S.W.2d 161

J. PARRA e HIJOS, S.A. de C.V., Appellant, v. Rafael BARROSO, Appellee.

No. 13-96-290-CV.

Court of Appeals of Texas Corpus Christi.

Oct. 30, 1997.

Veda Ann Moore, Sugar Land, for Appellant.

Harold R. McKeever, Payne & Blanchard, Mark Ben Greenberg, Dallas, for Appellee.

Before SEERDEN, C.J., and FEDERICO G. HINOJOSA, Jr. and CHAVEZ, JJ.

OPINION

CHAVEZ, Justice.

The trial court entered a take-nothing judgment in favor of appellee, Rafael Barroso ("Barroso"). We will affirm.

Factual background

Appellant, J. Parra e Hijos, S.A. de C.V. ("Parra e Hijos"), is a Mexican corporation based in Mexico City, Mexico which manufactures plastic eating utensils. Parra e Hijos is run by Arturo Parra Zapata ("Arturo Parra"), ¹ its general manager, who is a Mexican citizen. Barroso, who (at the time of events giving rise to the underlying suit) apparently had homes in both Cameron County, Texas and in Mexico, ² is also a Mexican citizen. The record indicates that Barroso owned 80% -90% of the stock in Stankell Corporation ("Stankell"), a Texas corporation ³ doing business in Cameron County, Texas as well as an equivalent interest in Tex-Tex, S.A. ("Tex-Tex"), a Mexican corporation doing business as a maquiladora in Matamoros, Tamaulipas, Mexico. Apparently, Tex-Tex packaged plastic eating utensils for later sale by Stankell. Peter Osmers ("Osmers") was the general manager of Stankell. The record also indicates that Barroso is the sole shareholder in a corporation known as "Royal Viking," which existed to own various realty. The instant dispute arises from the sale of goods by Parra e Hijos to Stankell and/or Barroso.

Prior to November 2, 1986, Barroso approached Arturo Parra in Mexico City with a proposal to supply plastic utensils. Parra e Hijos was interested in doing business, but wanted any goods delivered to be secured by a letter of credit. At some point (perhaps after Arturo Parra's journey to Cameron County, Texas and Matamoros, Mexico), Parra e Hijos waived its letter of credit requirement in order to do business with Barroso.

Arturo Parra traveled to Cameron County, Texas, being met at the Brownsville airport by Barroso and taken to a ranch near San Benito, Texas, where Stankell maintained its offices and warehouse. Barroso testified that the warehouse was emblazoned with a Stankell sign on its side. Arturo Parra was also taken to the offices of the San Benito Bank & Trust Company ("San Benito Bank"), to the Tex-Tex facilities in Matamoros, Mexico, and later to Barroso's house in Rancho Viejo, Texas. Arturo Parra was told about Barroso's condominium at South Padre Island, Texas.

The precise date on which Parra e Hijos began doing business with entities owned by Barroso is unclear, as the testimony at trial was varied. In any event, the trial exhibits contain a copy of a six-month importation permit for a plastic injection mold, issued in Matamoros, Mexico on November 3, 1986, by the Mexican Secretara de Hacienda y Credito Pblico (federal secretary of treasury/finance), Direccin General de Aduanas (general customs directorate). According to the permit, Parra e Hijos was the importer, and "Stankell Corp., P.O. Box 5805, Brownsville, Texas" was the provider. Trial testimony indicated that the injection mold was needed to set up production lines. Some time thereafter, Parra e Hijos began supplying Barroso's entities.

The record indicates that Stankell did not become significantly delinquent in its account with Parra e Hijos until, approximately, 1990. The record contains a copy of a check, dated "11-2-87," payable to Parra e Hijos, drawn on Stankell's account at San Benito Bank, and signed by Barroso; this check is the only writing in the record which Barroso signed on behalf of Stankell. The record also contains copies of daily production records from Parra e Hijos, from the month of June 1988, which identify Parra e Hijos's client as "Stankell."

The record contains copies of six purchase orders from "Stankell Corp.," to Parra e Hijos, ordering shipment of goods to "Stankell c/o Tex , Matamoros, Tamps." The purchase orders span the period of "10/10/90" to "12/18/90," and are signed as follows:

Stankell Corporation

Buyer /s/ P. Osmers Gen. Mgr,

Merchandise was indisputably shipped according to the purchase orders.

The record also contains twenty-one invoices (corresponding to the aforementioned purchase orders), forwarded to "Stankell Corp." in Brownsville, spanning the period from October 17, 1990 to February 28, 1991. The smallest of the invoices was for $6,813.34. ⁴ Altogether, the invoices evidence an undisputed debt of $182,267.34. The invoices were not paid, and in March 1991, Arturo Parra traveled to Cameron County, Texas with an employee of Parra e Hijos, Mauricio Quintana Rosas ("Quintana"), for a workout meeting at Stankell's offices at the San Benito ranch.

Testimony at trial varied as to who negotiated with whom at the meeting, but the outcome of the meeting was that Parra e Hijos granted a $20,000 discount (reducing the total debt to $162,267.34), in exchange for which two checks (one for $100,000, and the other for $62,267.34) were given to Parra e Hijos. The checks were to be drawn on Stankell's account at San Benito Bank, and were signed by Osmers. The discount agreement was memorialized by a letter dated March 20, 1991, on Stankell letterhead, and signed by Osmers for Stankell and Arturo Parra for Parra e Hijos. The checks were, however, dishonored by San Benito Bank, as Osmers had executed stop payment orders at the bank.

Testimony at trial indicated that, at some point roughly contemporaneous with the execution of the stop payment orders by Osmers, both Stankell and Tex-Tex became insolvent. The record indicates that Stankell filed a petition in bankruptcy. The record also indicates that Parra e Hijos did not file a proof of claim in the Stankell bankruptcy. Stankell's major valuable asset--a packaging machine used by Tex-Tex in Matamoros--had been seized in Mexico as a consequence of the Tex-Tex insolvency. The San Benito ranch had been merely leased by Stankell from Royal Viking, its true owner, and Barroso's condominium at South Padre Island was also owned by Royal Viking.

On February 11, 1992, Parra e Hijos filed its original petition against Barroso, Osmers and San Benito Bank. Parra e Hijos pled claims of fraud, alter ego, and guaranty against Barroso, and conspiracy to commit fraud against Barroso and Osmers. San Benito Bank was sued for wrongful dishonor.

San Benito Bank filed its "Notice to the District Clerk of Filing of Notice of Removal" on February 28, 1992, and the lawsuit was removed to federal court. On March 24, 1992, Osmers, individually, filed a suggestion of bankruptcy in federal district court, staying collection efforts against him by Parra e Hijos. Barroso and San Benito Bank were severed out of the action against Osmers, and the federal court signed an "Agreed Order of Remand" on March 5, 1993, remanding the case against Barroso and San Benito Bank back to state court. At an indeterminate point, Parra e Hijos settled its claims against San Benito Bank, leaving Barroso as the remaining defendant in the lawsuit. ⁵

The suit against Barroso was tried to the bench on February 1, 1996. Testimony was received from Arturo Parra, Quintana, and Barroso. Osmers did not testify, and the testimony of Barroso indicated that Osmers had "disappeared the following day after ... the bankruptcy."

Arturo Parra was the first witness. The following testimony was received from him:

Q. Did he [Barroso] talk to you about the Stankell Corporation being the company you were going to do business with?

A. Yes.

Q. And what did he say to you in that regard?

A. "This is my company and I will support everything from my company."

. . . . .

Q. You agree with me, do you not, sir, that you do not have a written guarantee [sic] signed by Mr. Barroso where he guarantees any debts of Stankell Corporation, correct?

A. No. I got his word.

According to Arturo Parra, payments by Stankell, during 1988 and 1989, proceeded "perfectly," and Barroso would often personally deliver Stankell checks to Parra e Hijos in Mexico City. Arturo Parra also testified that Parra e Hijos shipped goods after receiving purchase orders from Stankell, and that invoices were forwarded to Stankell. When asked, "What was your understanding as to why you were addressing your invoice to Stankell instead of Mr. Barroso?," he answered, "Well, I think it was for commercial stuff, or whatever."

Quintana, the Parra e Hijos employee who attended the March 1991 workout meeting at Stankell's offices, testified as follows about the anticipated payment of Stankell's account pursuant to the discount agreement:

Q. Did you hear Mr. Barroso say where and when he would make that payment?

A. Just in a few days in Mexico City.

Q. All right. And after that agreement, was anything, was anything done with respect to, such as a handshake or a writing or anything, to memorialize what they had agreed to?

A. I asked for in that meeting to--I mean, write something of what we were talking, no? And they tell me, "It's just our word and that's it." Okay.

Q. And so then you left with Mr. [Arturo Parra] Zapata and returned to Mexico City?

A. Yes.

Barroso was the final witness, and he testified that Arturo Parra traveled to Cameron County, Texas and Matamoros, Mexico, prior to commencing a business relationship with Barroso and his entities, not to view Barroso's assets as a precursor to his decision to waive Parra e Hijos's letter of credit requirement, but rather to "familiarize himself with the business." Barroso testified that, when Osmers traveled to Mexico City on Stankell's business, Osmers would usually pay a visit to Barroso. However, Osmers had made trips to Mexico City without Barroso's knowledge, during which Osmers placed large orders with Parra e Hijos that Barroso thought were excessive. Osmers assured...