Opinion
No. 05-09-00923-CV
Opinion Filed January 28, 2011.
On Appeal from the 401st Judicial District Court Collin County, Texas, Trial Court Cause No. 401-03970-07.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
MEMORANDUM OPINION
Appellants PMS Hospitality, Inc. and Prakash Parikh appeal a judgment granted in favor of appellee OM Realty Finance Company on OM Realty's suit on an exclusive real estate listing agreement. In two points of error, appellants contend (1) the trial court erred in admitting OM Realty's copy of the listing agreement into evidence, and (2) the listing agreement is unenforceable because OM Realty violated a provision of the Texas Occupation Code. For the following reasons, we affirm the trial court's judgment.
Following a bench trial, the trial court concluded that appellant PMS Hospitality breached an exclusive listing agreement in which PMS Hospitality agreed to give OM Realty Finance Company the exclusive right to sell a motel property. As a preliminary matter, we note that although the recital portion of the judgment states judgment should be against PMS Hospitality and its owner Prakash Parikh, the decretal portion of the judgment is against PMS Hospitality only. The recitations preceding the decretal portion of a judgment form no part of the judgment itself. Nelson v. Britt, 241 S.W.3d 672, 676 (Tex. App.-Dallas 2007, no pet.); Alcantar v. Okla. Nat'l Bank, 47 S.W.3d 815, 823 (Tex.App.-Fort Worth 2001, no pet.). Rather, the decretal portion of the judgment controls. Nelson, 241 S.W.3d at 676. Here, because the decretal portion of the judgment is against PMS Hospitality alone, there is no judgment against Parikh in this case. An appealing party may not complain of errors that do not injuriously affect it or that merely affect the rights of others. Torrington v. Stutzmann, 46 S.W.3d 829, 843 (Tex. 2000). While a party of record is generally entitled to appellate review, that party must be prejudiced before he has standing to appeal. Reynolds v. Reynolds, 860 S.W.2d 568, 570-71 (Tex. App.-Dallas 1993, writ denied); In re Estate of Denman, 270 S.W.3d 639, 642 (Tex. App.-San Antonio 2008, pet. denied); Gorman v. Gorman, 966 S.W.2d 858, 864 (Tex. App.-Houston [1st Dist.] 1998, pet. denied). Because Parikh is not himself adversely effected by the judgment, he has no standing to appeal. Therefore, we dismiss Parikh's appeal. We now turn to the complaints raised by PMS Hospitality.
Because of the Aldridge presumption, the judgment is, of course, final. Ne. Indep. Sch. Dist. V. Aldridge, 400 S.W.2d 893, 897-98 (Tex. 1966).
The primary issue in this appeal is whether the trial court abused its discretion in admitting OM Realty's "Plaintiff's exhibit 1" over PMS Hospitality's "best evidence" objection because Plaintiff's exhibit 1 is not a complete original document. The evidence at trial showed the following.
Ashok Daftary is a licenced real estate broker and owner of appellee OM Realty, a real estate brokerage firm. OM Realty specializes in the sale of hotel and motel properties. Appellant PMS Hospitality owned a Ramada Inn motel that it wished to sell. In early 2007, Daftary and PMS Hospitality's president Prakash Parikh discussed entering into an exclusive listing agreement for OM Realty to sell the motel. On February 6, 2007, Daftary met Parikh in Montgomery, Texas to deliver a written listing agreement. Daftary identified Plaintiff's exhibit 1 as the agreement they executed that day. Exhibit 1 is a five-page fully executed preprinted form contract with blanks for the variable terms. The blanks contain typed-in terms. The first page also contains some handwritten changes to the typed in terms. That page is a photocopy with no "blue ink." The second through fifth pages are "blue ink" originals.
Daferty testified that at the February 6 meeting, he presented the original contract to PMS Hospitality with OM Realty's proposed terms. At that meeting, PMS Hospitality requested certain changes before it would agree to the contract. Specifically, the listing price was changed from $2.2 million to $2.6 million and the commission was changed from 6.999 percent to 5 percent. These changes were made in handwriting and initialed by both parties. The December 31, 2009 expiration date of the contract remained unchanged. Daftary testified the contract was executed at that time. He said Plaintiff's exhibit 1 is the original contract except for the first page, which is a photocopy. It is the photocopied page the contains the expiration date of the contract, the contract price, and the commission rate.
Daftary testified that after they executed the contract, he took the original back to his office to make photocopies. Parikh subsequently sent e-mails to Daftery acknowledging that he had signed "papers" on February 6 and requesting copies of those papers. Parikh and Daftery met again on March 22th to discuss the contract. Daftary testified he took the original contract to that meeting. When he returned to his office after that meeting, he no longer had the original of page one, but only a photocopy. Also at the March 22 meeting, the parties signed a handwritten note addressed "to whom it may concern" stating, "we mutually agreed to charge 5 % professional fee for the Ramada Inn, Conroe Motel, Montgomery County, Tx. This is amendment to contract dated February 6, 2007." In September 2007, PMS Hospitality sold the property for $2.2 million. PMS Hospitality did not pay OM Realty a commission and OM Realty filed suit.
PMS Hospitality denied that the parties ever reached an agreement. Parikh admitted he signed a signature page for PMS Hospitality on February 6, 2007, but asserted no agreement as to material terms had been reached at that time. In the alternative, PMS Hospitality asserted if an agreement was reached, the property sold after the exclusive listing agreement expired because the contract period was ninety-days, expiring on May 6, 2007, before the property sold.
According to Parikh, after he signed the signature page on February 6, he met with Daftery two more times in March and then they had a final "fourth meeting" in the month of "April or so." At this fourth meeting, he was first presented with page one of the listing agreement and he and Daftery began making handwritten changes. Parikh testified the changes, including the change to the sales prices and commission, were made at this time and initialed by both parties. Parikh claimed Daftery had to leave for another meeting, so he left the contract with Parikh to make what further changes he wanted. Daferty instructed Parikh to fax the contract with his changes back to him and said he would then sign. Parikh made the changes he wanted, including shortening the exclusive listing period to "ninety days" from February 6, 2006 to May 6, 2006 and faxed it to Daftery. Parikh identified Plaintiff's exhibit 6 as the version of the contract that existed when he faxed it to Daftery.
Interestingly, PMS Hospitality contended no contract existed before this "April or so" meeting, but its version of the contract stated the period of the contract was from February 6, 2007 to May 6, 2007.
After hearing the evidence, the trial court concluded the parties had reached an agreement on February 6, 2006 and that Plaintiff's exhibit 1 was the agreement reached. Consequently, it awarded a judgment in favor of OM Realty against PMS Hospitality. This appeal followed.
In its first issue, PMS Hospitality contends the trial court abused its discretion in admitting Plaintiff's exhibit 1 because the first page of that document is not an original. Under the best evidence rule, to prove the contents of a writing, the original writing is required except as otherwise provided in these rules or by law. Tex. R. Evid. 1002. Under rule of evidence 1003, a duplicate is admissible to the same extent as an original unless (1) a question is raised as to the authenticity of the original, or (2) in the circumstances, it would be unfair to admit the duplicate in lieu of the original. Tex. R. Evid. 1003.
According to PMS Hospitality, the trial court abused its discretion in admitting the photocopy because a question was raised as to the authenticity of the original. We disagree. Looking at the substance of PMS Hospitality's complaint, it is clear PMS Hospitality is not contending any original document was altered or doctored in any way. Indeed, everything that appears on exhibit 1 also appears on Defendants' exhibit 6. Moreover, according to Parikh's own testimony, the photocopy of page one admitted with Plaintiff's exhibit 1 is a duplicate of the version of page one that Daftery left with Parikh after the "fourth meeting." He asserts the parties were still negotiating and maintains he made additional changes to the document (specifically to its duration) before there was a meeting of the minds. In substance, PMS Hospitality's actual complaint is that it did not intend that document to constitute the final agreement. Indeed, PMS Hospitality's arguments about exhibit 1 would be identical even if the first page was a blue ink original. Under these circumstances, we see no reason for requiring the original. We conclude PMS Hospitality has not raised a question as to the "authenticity" of exhibit 1, but rather only a question as to whether exhibit 1 constituted the parties' final agreement. Therefore, we cannot conclude the trial court abused its discretion in admitting exhibit 1 into evidence.
In the alternative, we conclude even if the best evidence rule applies, OM Realty established an exception to the rule. The production of the original document is excused if it is established to the court's satisfaction that the document has been lost or destroyed. Tex. R. Evid. 1004(a); Travis County Water Control and Imp. Dist, No. 12 v. McMillen, 414 S.W.2d 450, 452 (Tex. 1966); Jurek v. Couch-Jurek, 296 S.W.3d 864, 870 (Tex. App.-El Paso 2009, no pet). Additionally, the law does not allow someone in possession of an original document to complain about its non-production. See Tex. R. Evid. 1004(d).
According to PMS Hospitality, the trial court erred in admitting Plaintiff's exhibit 1 as an exception to the best evidence rule because OM Realty did not produce sufficient evidence to establish the contract had been lost or destroyed. Daftery testified that he looked for the original page one and could not find it. He stated that he had all the original pages of the contract when he went to the March 22 meeting. When he returned from the meeting, the original of page one was missing and he had a photocopy. He stated papers had been "shuffled" at this meeting. We conclude there was sufficient evidence before the trial court to conclude the original page one was either lost or destroyed or that Daftery left the original page one with Parikh. Cf. In re Estate of Berger, 174 S.W.3d 845, 847 (Tex. App.-Waco 2005, no pet.) (some evidence document lost when proponent of will said it was last seen on decedent's kitchen table and husband of decedent said he could not find it). While Daftery disputed this testimony, the trial court is the trier of fact with respect to fact questions on preliminary question of admissibility. See Tex. R. 104(b); Steenbergen v. Ford Motor Co., 814 S.W.2d 755 (Tex. App.-Dallas 1991, writ denied). We resolve the first issue against PMS Hospitality. In its second issue, PMS Hospitality contends the trial court erred in finding it liable for breaching the exclusive listing agreement because OM Realty violated section 1101.652(28) of the Texas Occupations Code by failing to send a copy of the agreement to PMS Hospitality when it requested a copy. PMS Hospitality's reliance on section 1101.652(28) fails for several reasons.
Section 1101.652(28) of the Occupations Code provides that the Texas Real Estate Commission may suspend or revoke a real estate broker's license or take other disciplinary action against a broker if the broker fails or refuses to provide, on request, a copy of a document relating to the real estate transaction to a person who signed the document. Tex. Occ. Code Ann. § 1101.652(28) (West 2004). According to PMS Hospitality, OM Realty violated section 1101.652(2) and such a violation renders the contract unenforceable. PMS Hospitality is thus attempting to utilize section 1101.652(28) as an affirmative defense to liability on the contract. PMS Hospitality did not however plead section 1101.652(2) as a defense. An affirmative defense must be pleaded or it is waived. See Tex. R. Civ. P. 94; Kinnear v. Tex. Com'n on Human Rights ex rel. Hale, 14 S.W.3d 299, 300 (Tex. 2000). Therefore, PMS Hospitality has waived section 1101.652(28) as a ground for avoiding the contract.
Furthermore, PMS Hospitality has not made a proper evidentiary challenges to the trial court's judgment. The parties clearly disputed whether OM Realty provided a copy of the contract to PMS Hospitality at the March 22 meeting. Moreover, Parikh admitted he was given a copy of the contract at a "fourth meeting." It is an appellant's burden to establish reversible error. Meachum v. Comm'n for Lawyer Discipline, 36 S.W.3d 612, 615 (Tex. App.-Dallas 2000, pet. denied). To meet this burden, PMS Hospitality would have to show conclusively that OM Realty did not provide a copy of the contract on request. However, PMS Hospitality has failed to brief the evidence under the appropriate standard of review. See Tex. R. App. P. 38.1(h). We conclude this argument presents nothing to review.
Finally, we cannot agree with PMS Hospitality's premise that a violation of section 1101.652(28) prevents a broker from enforcing a listing agreement. Section 1101.652 contains numerous grounds upon which the real estate commission can revoke or suspend a broker's license or otherwise discipline a broker. See Tex. Occ. Code Ann. § 1101.652 (West 2004 Supp. 2010) As explained by the court in Northborough Corporate Ltd. v. Cushman Wakefield of Texas, 162 S.W.3d 816, 821 (Tex. App.-Houston [14th Dist.] 2005, no pet.), that section does not concern when a broker may sue to recover a commission. Those provisions instead are found in section 1011.806(c). Id. That section requires an agreement for a real estate commission to be in writing signed by the party against who the action is brought. In this appeal, PMS Hospitality has not alleged a violation of 1101.806(c). For all of the foregoing reasons, we resolve the second issue against PMS Hospitality.
PMS Hospitality relies heavily upon Perl v. Patrizi, 20 S.W.3d 76, 80 (Tex. App.-Texarkana 2000, pet. denied), for their contention under this issue. Perl was decided under a different statutory scheme and is not helpful to our review.
We affirm the trial court's judgment