Opinion
No. 05-09-01450-CV
01-25-2012
E PARTS AND SERVICES, LLC, Appellant v. AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, Appellee
AFFIRM; Opinion Filed January 25, 2012.
On Appeal from the 14th District Court
Dallas County, Texas
Trial Court Cause No. 07-05986-A
MEMORANDUM OPINION
Before Justices Moseley, FitzGerald, and Richter
Opinion By Justice Moseley
This appeal arises from a breach of contact action filed by American Express Travel Related Services Company ("AmEx") against E Parts and Services, LLC ("E Parts"), a merchant authorized to accept AmEx's credit cards. AmEx sued E Parts for breaching the parties' governing agreement, the Merchant Agreement. E Parts asserted several affirmative defenses, including breach of the covenant of good faith and fair dealing under New York law, breach of fiduciary duty, and breach of contract. E Parts also asserted a counterclaim for breach of contract. AmEx prevailed at trial and was awarded damages; E Parts's appeal arises from its failure to prevail on its affirmative defenses.
E Parts argues four issues on appeal, asserting the trial court erred when it did not take judicial notice of New York law, denied E Parts's motion for directed verdict, and refused to include two of E Parts's proposed jury instructions in its charge. The background and facts of the case are well-known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment.
The Merchant Agreement states: "This Agreement is governed by and will be construed according to the laws of the State of New York without regard to internal principles of conflicts of law." E Parts filed a Request for Judicial Notice asking the trial court to take judicial notice of New York law. Rule 202 requires a court to take judicial notice of the law of another state when a party files a motion, provides the court with sufficient information so the court can comply with the request, and gives notice to other parties. See Tex. R. Evid. 202; Burlington N. & Santa Fe Ry. Co. v. Gunderson, Inc., 235 S.W.3d 287, 290 (Tex. App.-Fort Worth 2007, pet. withdrawn). AmEx does not claim E Parts failed to comply with rule 202; reviewing E Parts's Request for Judicial Notice de novo, see Progressive Child Care Sys., Inc. v. Kids "R" Kids Int'l, Inc., 2008 WL 4831339, at *2 (Tex. App.-Fort Worth Nov. 6, 2008, pet. denied), we conclude it was sufficient under rule 202. Thus, the trial court erred by failing to take judicial notice of New York law. We now take judicial notice of New York law and conclude the error was not harmful. See Tex. R. App. P. 44.1.
The parties agree New York law imports a duty of good faith and fair dealing into all contracts. See Dalton v. Educ. Testing Serv., 87 N.Y.2d 384, 389, 639 N.Y.S.2d 977, 663 N.E.2d 289 (1995). However, as E Parts conceded in its Request for Judicial Notice submitted to the trial court (and as AmEx argues in its brief), New York does not recognize breach of the covenant of good faith and fair dealing as a separate cause of action when a party also asserts a breach of contract claim based on the same facts. E Parts and AmEx cite the same case for this point of law: Ari & Co., Inc. v. Regent Intern. Corp., 273 F.Supp. 2d 518, 522 (S.D.N.Y. 2003) (citing Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 81 (2d Cir. 2002)). After reviewing E Parts's pleadings, we believe the two allegations rest on the same facts. Because E Parts could not have prevailed on its assertion that AmEx breached the covenant of good faith and fair dealing, see Ari & Co., 273 F.Supp. 2d at 522; City of New York v. 611 West 152nd Street, Inc., 273 A.D.2d 125, 126, 710 N.Y.S.2d 36 (2000), the trial court's denials of E Parts's Request for Judicial Notice was harmless error. We overrule E Parts's first issue.
E Parts's second issue states: "Did the trial court err in denying Plaintiff's motion for directed verdict on the grounds that the Defendant failed to prove up New York law as part of its case-in-chief." Because E Parts, the defendant below, not AmEx, the plaintiff below, filed the motion for a directed verdict, E Parts's second issue, as asserted, presents nothing for this court to review. See generally Tex. R. App. P. 38.1(f); Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 896-897 (Tex. App.-Dallas 2010, no pet.). Assuming E Parts's complaint is that AmEx failed to prove up New York law, we reach the same conclusion as E Parts has not cited any authority showing AmEx bore that burden. Moreover, as noted above, New York law did not differ from Texas law under the circumstances of this case. We overrule E Parts's second issue.
In its third and fourth issues, E Parts challenges the trial court's refusal to include two proposed questions (proposed question numbers 5 and 7) in the jury charge. Proposed question number 7 asked whether AmEx "fail[ed] to comply with the implied covenant of good faith and fair dealing it had with E Parts." Because E Parts's allegation that AmEx breached the covenant of good faith and fair dealing was redundant of its breach of contract claim under New York law, the trial court did not abuse its discretion by refusing to submit proposed question number 7. See Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.1990) (A trial court's decision to submit or refuse a particular question or instruction is reviewed under the abuse of discretion standard.). We overrule E Parts's third issue.
Proposed question number 5 asked whether AmEx "compl[ied] with its fiduciary duty to E- Parts." E Parts provides no authority in its brief stating that a credit card company and a merchant have a formal fiduciary relationship. E Parts also presented no evidence raising an issue as to whether an informal fiduciary relationship existed between the parties. See Meyer v. Cathey, 167 S.W.3d 327, 330-331 (Tex. 2005). Therefore, the trial court did not err when it declined to include proposed question number 5 in the jury charge. We overrule E Parts's fourth issue.
For the reasons stated herein, we affirm the judgment of the trial court.
JIM MOSELEY
JUSTICE
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