Puri v. Mansukhani
| Decision Date | 21 May 1998 |
| Docket Number | No. 14-96-01368-CV,14-96-01368-CV |
| Parties | 135 Lab.Cas. P 58,403 Suresh K. PURI, Appellant, v. Rustom MANSUKHANI, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Tom P. Allen, Judith A. Meyer, Houston, for appellant.
Michael D. Jones, Houston, for appellee.
Before YATES, AMIDEI and FOWLER, JJ.
This is an appeal from the denial of both a special appearance and a motion for new trial after a default judgment. Appellant, Suresh K. Puri, a native of Nigeria, is a shareholder officer, and director of a Texas corporation, Alpha Impex, Inc. (Alpha). In his suit for breach of his employment contract, appellee, Rustom Mansukhani, the corporation's president, obtained a default judgment against appellant. Appellant alleges in thirteen points of error that the trial court erred in denying his special appearance and his motion for new trial. We affirm.
Appellant and Harish Chulani (Chulani) established Alpha in 1990 to trade in synthetic resins in the international market. Appellant and Chulani were equal shareholders in Alpha. They recruited appellee to move to Houston from Nigeria to become Alpha's president, and Chulani instructed appellee to purchase a residence in Houston. Appellee originally received some shares of Alpha stock, but he was later required to return them. In February 1991, appellee and Alpha entered an employment contract, which was executed by Chulani as Chairman of the Board of Alpha. In the contract, Alpha promised to pay appellee a salary of $90,000 per year for a ten-year period.
Appellant was also the Chairman of a Nigerian import company called Agro Allied Development Enterprises Limited (Agro Allied). Agro Allied acquired synthetic resins in the international market and sometimes traded with Alpha. Agro Allied also imported other products, including cocoa, lemon grass, equipment, and spare parts.
Initially, Alpha complied with the employment agreement. Appellee asserts that appellant took over as Chairman of Alpha in May 1993, and Alpha then underpaid appellee by approximately $85,000. Alpha ceased doing business in August 1994.
On August 31, 1994, Chulani caused Alpha to file this suit against appellee to require production of corporate records and for an accounting of corporate assets. Appellee counterclaimed, alleging the corporation breached his employment contract. He amended his claim to add appellant and Chulani as third party defendants, alleging negligent misrepresentation or fraud in the inducement of the employment contract. Appellee asked that the corporate entity be disregarded and that Chulani and appellant be held personally liable. Both appellant and Chulani were served with process in London in January 1996 and neither filed an answer. Appellee filed a motion for a default judgment, and a hearing was held on July 9, 1996. The trial court entered a default judgment on July 12, 1996, against both third party defendants and filed findings of fact and conclusions of law.
On August 12, 1996, appellant filed a special appearance. See TEX.R. CIV. P. 120a. The same day, subject to his special appearance, he also filed a motion for new trial. The trial court conducted a hearing on the special appearance on September 17, 1996. At the conclusion of the hearing, the court denied the special appearance. Appellant's counsel was not prepared to go forward on a hearing on appellant's motion for new trial after the special appearance hearing concluded. Appellant's counsel indicated appellant wanted a hearing, but none had been requested and the motion had been scheduled for submission the previous day. No hearing was held. On October 7, 1996, the trial court entered an order denying the special appearance and later filed findings of fact and conclusions of law. The motion for new trial was overruled by operation of law. 1 Appellant timely requested findings of fact and conclusions of law on the denial of its motion for new trial, but none were filed. This appeal resulted.
Initially, we must resolve whether appellant waived his special appearance, as appellee contends. Appellant filed his motion for new trial subject to his special appearance. As one of the grounds for his motion, appellant stated he was ready to go to trial.
The Texas Supreme Court has held that a defendant waived its special appearance, even though the motion for new trial was made subject to the special appearance, because the motion stated the defendant was "ready to try this case when it is properly set for trial." See Liberty Enter., Inc. v. Moore Transp. Co., 690 S.W.2d 570, 571-72 (Tex.1985). The defendant also agreed to the court's order reinstating the cause of action. The court found the defendant submitted to the court's jurisdiction by these affirmative acts, and therefore, its actions constituted a general appearance. Id.
Accordingly, we must determine whether appellant's motion for new trial constituted a general appearance. One court has explained:
A party enters a general appearance whenever it invokes the judgment of the court on any question other than the court's jurisdiction; if a defendant's act recognizes that an action is properly pending or seeks affirmative action from the court, that is a general appearance.
Moore v. Elektro-Mobil Technik GmbH, 874 S.W.2d 324, 327 (Tex.App.--El Paso 1994, writ denied) ().
In this case, appellant did not make the same unqualified representation that he was ready to go to trial that was found in Liberty Enterprises. Instead, appellant wrote, "[s]ubject to and without waiving his Special Appearance, Puri is ready to go to trial and is willing to reimburse Mansukhani for all reasonable expenses incurred in obtaining the default judgment." (emphasis added).
The Texas Supreme Court recently held that a party who agreed her motion to quash service was moot after a defective special appearance was denied had not made a general appearance waiving her amended special appearance filed the next day. Dawson-Austin, at 324-27. The court also ruled that the motion to quash, a plea to the jurisdiction and plea in abatement, which were not specifically subject to the special appearance but were contained in the same instrument, did not constitute a general appearance. Id. at 321-23. In Dawson-Austin, the court appears to have retreated somewhat from the strict rule in Liberty Enterprises that resulted in waiver of a special appearance.
Many Texas courts generally recognize that if a non-resident defendant discovers a default judgment was entered, he should file a special appearance and then a motion for new trial subject to his special appearance. See, e.g., Koch Graphics, Inc. v. Avantech, Inc., 803 S.W.2d 432, 433 (Tex.App.--Dallas 1991, no writ) ( the defendant's special appearance was not waived where its motion for new trial and to have default judgment set aside were expressly made subject to its special appearance); see also Memorial Hosp. Sys. v. Fisher Ins. Agency, Inc., 835 S.W.2d 645, 652 () (addressing the merits of defendant's special appearance and motion for new trial without finding waiver). Moreover, rule 120a provides that "any other plea, pleading, or motion may be contained in the same instrument or filed subsequent thereto without waiver of such special appearance." TEX.R. CIV. P. 120a(1).
Accordingly, we hold that appellant did not enter a general appearance and preserved his special appearance by making his motion for new trial strictly subject to his special appearance.
When properly requested, the trial court has a mandatory duty to file findings of fact. Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex.1989). If the trial court does not file findings after they have been timely and properly requested, it is presumed harmful unless the record affirmatively shows the appellant suffered no harm. Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex.1996).
Appellant asserts that findings on its motion for new trial were necessary and properly requested, but were not filed by the trial court. Appellant asks that we reverse the case because the error is not remediable in that the trial judge, Judge Carolyn Garcia, is no longer on the bench. See FDIC v. Morris, 782 S.W.2d 521, 523-24 (Tex.App.--Dallas 1989, no writ) ( for lack of findings because the trial judge was no longer on the bench).
First, appellant has not properly assigned error for our review. He alleges no point of error challenging the trial court's failure to make findings. Consequently, appellant has waived his complaint. See Perry v. Brooks, 808 S.W.2d 227, 229-30 () ( that error was waived where no point of error was alleged on lack of findings).
Furthermore, findings of fact are not mandatory after a motion for new trial. This is especially true when the motion is determined without a hearing. Findings of fact are appropriate after a motion for new trial hearing to receive evidence. See, e.g., Higginbotham v. General Life & Acc. Ins. Co., 796 S.W.2d 695, 695 (Tex.1990) (). They are not required, however.
Rule 296 provides that "[i]n any case tried in the district or county court without a jury, any party may request the court to state in writing its findings of fact and conclusions of law." TEX.R. CIV. P. 296. A case is "tried" when there is an evidentiary hearing before the court upon conflicting evidence. See Besing v. Moffitt, 882 S.W.2d 79, 81-82 (Tex.App.--Amarillo 1994, no writ). The purpose of Rule 296 is to give a party a right to findings of fact and conclusions of law finally adjudicated after a conventional trial on the merits before the court. In other cases, findings and conclusions may be...
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