Ramsay v. Texas Trading Co., Inc., 06-07-00043-CV.

• Court: Court of Appeals of Texas
• Citation: 254 S.W.3d 620
• Docket Number: No. 06-07-00043-CV.,06-07-00043-CV.
• Parties: Tom RAMSAY, Appellant, v. TEXAS TRADING CO., INC., and ADM Investor Services, Inc., Appellees.
• Decision Date: 05 May 2008

254 S.W.3d 620 Tom RAMSAY, Appellant,
v.
TEXAS TRADING CO., INC., and ADM Investor Services, Inc., Appellees. No. 06-07-00043-CV. Court of Appeals of Texas, Texarkana. Submitted April 2, 2008. Decided May 5, 2008.

[254 S.W.3d 622]

John R. Mercy, Mercy Carter Tidwell, LLP, Texarkana, J. Craig Falls, Falls Smith, LLP, Austin, for appellant.

Jim D. McLeroy, McLeroy, Litzler & Rutherford, PC, Larry A. Powers, Powers & Blount, LLP, Sulphur Springs, Thomas Knepper, Knepper & Gladney, Chicago, IL, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

[254 S.W.3d 623]

OPINION

Opinion by Chief Justice MORRISS.

Less than a half hour before the cattle-futures markets closed December 23, 2003, Tom Ramsay appeared at Texas Trading Company, Inc.'s Sulphur Springs office and wanted a personal account opened so he could sell "short" five cattle-futures contracts for his personal account through ADM Investor Services, Inc. (ADM), Texas Trading's clearing broker in Illinois. That is the scene Charles Dawson, the principal owner of Texas Trading, and his daughter (and then Texas Trading employee) Liz Harper described concerning that day. That day, Ramsay reportedly indicated that he did not have the time to sign an account agreement, so Harper reportedly delivered a form agreement to him as he left Texas Trading's office. Later, Harper signed the form agreement for Ramsay, though the testimony conflicts on whether he authorized that signature. Still later, pursuant to another term of the form agreement and after numerous Ramsay-initiated trades through the newly established account, Ramsay's position, at that time, was liquidated to cover existing losses. Ramsay lost a large sum of money.

At the heart of this case, filed by Ramsay, is whether an agreement between Ramsay, Texas Trading, and ADM was established based on the terms set out in that form and, if so, whether a forum selection clause in that agreement was enforceable.

In a narrowly focused jury trial—limited to just the question of whether Ramsay had authorized Harper to sign the agreement for him—the jury found the signature authorized. With that jury finding, the trial court dismissed the rest of the lawsuit on the basis that the agreement's forum-selection clause allowed ADM to require any related litigation to occur in Illinois. Ramsay appeals, urging numerous issues.

We affirm the trial court's action because we hold (1) there was no abuse of discretion in holding a separate trial on Harper's authorization to sign for Ramsay, (2) there was no error in allowing ADM and Texas Trading to argue first and last in closing argument, (3) legally and factually sufficient evidence supports the jury's finding that the signature was authorized, and (4) the agreement's forum-selection clause is enforceable.

(1) There Was No Abuse of Discretion in Holding a Separate Trial on Harper's Authorization to Sign for Ramsay

We first address the question of whether the trial court had the authority to bifurcate the proceeding and try the signing-authority issue separately.

Procedurally, ADM filed a motion to bifurcate trial to seek a jury determination of whether the allegedly forged signature was authorized by Ramsay. The trial court granted the motion, stating that the first phase of trial would decide whether Ramsay's signature was authorized.

This issue is controlled by Rule 174(b) of the Texas Rules of Civil Procedure:

The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.

TEX.R. CIV. P. 174(b). The rule is exceedingly broad. Although Ramsay argues that this constitutes an abuse of the trial court's discretion, we disagree based on the breadth of the rule. In an extensive discussion of this rule, McDonald's Texas Civil Practice points out that the rule provides

254 S.W.3d 624

broad and real discretion to order separate trials of issues. See 3 ROY W. McDONALD & ELAINE A. GRAFTON CARLSON, TEXAS CIVIL PRACTICE 2d § 17.27 (2000).

[W]e have said that the discretion to require severances and separate trials conferred on trial courts by this and other Rules is `about as broad as language could make it'.

Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648, 650 (1958).¹

Appellant attacks the trial court's determination based on "long standing policy and practice" against "piecemeal trials," which was also articulated by Iley. See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 47, n. 29 (Tex.1994). Iley, however, addressed the propriety of dividing the liability from the damages portions of lawsuits, and concluded that, based on long-standing policies of the state, and the desire to avoid a multiplicity of suits, the two should be tried together. Even so, there is a balance that must be struck between the ability to shorten the process and the need to avoid piecemeal trials.

The trial court's action in first hearing the authorization issue is a reasonable procedure suggested by the logical structure of the case. The issue of authorization was of considerable importance in determining a critical threshold issue: whether the contract was binding on Ramsay, and thus whether the contract's forum-selection clause could be considered for enforcement against him. Before the court could determine whether a valid forum-selection clause would require dismissal of the remainder of the lawsuit, it would be necessary to determine whether that clause was part of an existing contract. Proceeding in this fashion allowed the trial court to avoid a full-blown trial on most of the issues that would not be effectively tried in Texas, if the contract and the forum-selection clause were enforceable. Had the jury come in with the opposite verdict, all involved would know how to proceed most advantageously with the remainder of the trial in Texas. This is the type of discretion contemplated by the rule. There was no error here.

(2) There Was No Error in Allowing ADM and Texas Trading to Argue First and Last in Closing Argument

Ramsay also argues that, procedurally, the trial court erred by allowing Texas Trading and ADM to open and conclude closing arguments. Texas Trading and ADM had asked to be placed in that position for presentation of evidence, but the court had declined to do so, based on the untimeliness of the motion. After evidence was presented, however, the court changed its mind and allowed ADM and Texas Trading to argue first and last during closing arguments.

This is an issue resolved by reading two rules together. It is true that Rule 266 says the plaintiff has the right to open and conclude both evidence and argument unless the burden of the whole case rests on the defendant. Rule 266 opens, however, with the phrase "except as provided in Rule 269."

Rule 269(a) of the Texas Rules of Civil Procedure states that the party having the burden of proof on all matters submitted to the jury is entitled to open and conclude the argument. See TEX.R.APP. P. 269(a).

In this case, Texas Trading and ADM had the burden of proof on all matters submitted by the charge. Thus, under the

254 S.W.3d 625

rule, they had the right to open and conclude argument. There was no error here.

(3) Legally and Factually Sufficient Evidence Supports the Jury's Finding That the Signature Was Authorized

The test for legal sufficiency is "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In making this determination, we credit favorable evidence if a reasonable fact-finder could, and disregard contrary evidence unless a reasonable fact-finder could not. Id. So long as the evidence falls within the zone of reasonable disagreement, we may not substitute our judgment for that of the fact-finder. Id. at 822. The trier of fact is the sole judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. Although we consider the evidence in a light most favorable to the challenged findings, indulging every reasonable inference that supports them, we may not disregard evidence that allows only one inference. Id. at 822.

When considering a factual sufficiency challenge to a jury's verdict, courts of appeals must consider and weigh all of the evidence, not just that evidence which supports the verdict. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998). A court of appeals can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id. at 407; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The court of appeals is not a fact-finder. As stated above, we may not pass on the witnesses' credibility or substitute our judgment for that of the jury, even if the evidence would clearly support a different result. Ellis, 971 S.W.2d at 407.

There was evidence that company policy required personal signing of the agreement, and Ramsay repeatedly testified that he did not authorize anyone to sign on his behalf. Liz Harper agreed that an authorization to sign on another's behalf should also be obtained in writing, but testified that she did sign on Ramsay's behalf. She testified that he had been in a hurry to open an account so that he could profit from a trading opportunity personally and not make that trade in an existing joint account he shared with another customer. She testified in detail that Ramsay had come in very late in the trading day; that he wanted the personal account immediately; that Ramsay indicated a lack of time to stay and sign account papers; that she handed him a form agreement for him to take with him; and that, as he was walking out the door, he asked her to fill the papers out and sign his name to them. Several days later, Ramsay called and asked her if...