Opinion
No. 13-02-154-CV
Opinion delivered August 26, 2004.
On appeal from the 138th District Court of Cameron County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and CASTILLO.
MEMORANDUM OPINION
This is a suit for debt and breach of contract. Appellants Rodolfo Zolezzi Thomas ("Zolezzi") and Maria Rita Guerra de Zolezzi ("Guerra de Zolezzi") appeal a directed verdict in favor of appellee Arrendadora Internacional, S.A. de C.V. ("Arrendadora"). In a single issue, Zolezzi and Guerra de Zolezzi complain of the trial court's admission of documents and expert testimony concerning the applicable statute of limitation under Mexican law, arguing that Arrendadora did not comply with rule 203 of the Texas Rules of Evidence. See Tex. R. Evid. 203. We affirm.
I. BACKGROUND FACTS
This is a memorandum opinion. The parties are familiar with the facts. We will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. See Tex.R.App.P. 47.4.
In June of 1992, Arrendadora, which is a Mexican machinery and equipment leasing business, entered into an agreement with Acuacultura Intensiva, S.A. de C.V. ("Acuacultura") to lease fish-farming equipment (the "Lease Agreement"). Acuacultura signed two promissory notes to finance the lease, one denominated in U.S. dollars (the "dollar note") and one in Mexican pesos (the "peso note"), guaranteed by Acuacultura's principals. Pursuant to the agreement and notes, Arrendadora purchased aeration equipment and leased it to Acuacultura, with an option to buy at the end of the lease term if Acuacultura made: (1) semesterly interest payments on the dollar note, with the principal amount due on December 15, 1992; and (2) principal and interest payments on the peso note beginning July 15, 1992 and ending June 15, 1996. The purchase option was contingent on full payment and compliance with the lease agreement.
Acuacultura is a Mexican corporation formed by Zolezzi and another principal.
Acuacultura defaulted after the first two payments. Arrendadora repossessed the equipment in 1998. It filed suit for breach of contract against Acuacultura, Zolezzi, and Guerra de Zolezzi. Zolezzi and Guerra de Zolezzi answered and asserted limitations as a defense. Acuacultura did not appear. On September 27, 2001, Zolezzi and Guerra de Zolezzi filed a motion to dismiss. In support of the motion, they referenced a venue provision in the dollar note that recited:
Any legal action or proceeding arising out of or relating to this Promissory Note may be brought in the courts of the State of New York, United States of America, or of the United States of America, or the State of New York, or of the City of Mexico, Federal District, Mexico, the undersigned waiving the jurisdiction of any other courts, all at the election of the holder hereof.
Zolezzi and Guerra de Zolezzi also cited a choice-of-law provision of the Lease Agreement that subjected them:
for the interpretation and fulfillment of the present contract to the laws of the Federal District, as well as to the jurisdiction and competency of its courts, resigning from now on the power or jurisdiction that they have or may have by virtue of their address or neighborhood.
Finally, Zolezzi and Guerra de Zolezzi also cited a different choice-of-law clause in the dollar note that it was deemed "made under the laws of the State of New York" and was to be "construed in accordance with the laws of the State of New York."
On October 12, 2001, Zolezzi and Guerra de Zolezzi withdrew their motion to dismiss. They asserted that "[a]fter further review of the applicable law and rules of procedure, Defendants now move to withdraw their earlier filed `Defendants' Motion to Dismiss'." On October 26, 2001, they filed an amended answer that reasserted their limitations defense. Among other claims, Zolezzi and Guerra de Zolezzi alleged that Arrendadora had failed "to comply with conditions precedent" by not complying "with the requisites of providing an `estado de cuenta'" pursuant to "Article 68 of the Ley de Instituciones de Credito and Article 48 of the Ley General de Organizaciones y Actividades Auxiliares de Credito." Alternatively, Zolezzi and Guerra de Zolezzi pleaded that Arrendadora was "precluded from proceeding to recover under the dollar note or peso note . . . because pursuant to Articles 325, 150, and 167 of the Ley General de Titulos y Operaciones de Credito, and pursuant to Articles 1090, 1092, and 1093," the notes were "an integral part of the lease agreement, and that in order to recover the notes have to be interpreted and enforced in conjunction with the lease agreement."
In its discovery responses, Arrendadora identified three experts as witnesses who would testify about the application of Mexican law to the claim in the lawsuit. Before trial, Zolezzi and Guerra de Zolezzi moved to exclude the experts' testimony or any documents on which they relied or that they prepared. Zolezzi and Guerra de Zolezzi asserted that Arrendadora failed to comply with requests for disclosure by not providing sufficient details of the experts' testimony. The trial court ruled, "In this case, you have been given the information well before trial, and, you know, whether you had objections to it or not, that could have been taken care of. They were filed in what, June? Motion denied."
At trial, Arrendadora's counsel questioned one of the experts as to the statute of limitation applicable to Arrendadora's cause of action under Mexican law. Defense counsel objected that Arrendadora had not produced the actual statute on which the witness based his testimony. The trial court did not rule on the objection. The witness identified the limitations statute. Arrendadora offered an affidavit that attached a copy of the Mexican code Arrendadora relied on as well as an English translation. Defense counsel again objected, this time arguing that Arrendadora had not complied with rule 203 of the rules of evidence. See Tex. R. Evid. 203. Counsel specifically objected that Arrendadora had not provided copies of the statutes and their English translation thirty days before trial. See id. Arrendadora's counsel responded that Zolezzi and Guerra de Zolezzi had cited other provisions of the same Mexican statute in their amended answer. The trial court overruled the objection. The witness continued to testify about the applicability of Mexican law. Defense counsel asked for and was granted a running objection.
II. DISCUSSION A. The Requirements of Rule 203
Rule 203 provides that:
A party who intends to raise an issue concerning the law of a foreign country shall give notice in the pleadings or other reasonable written notice, and at least 30 days prior to the date of trial such party shall furnish all parties copies of any written materials or sources that the party intends to use as proof of the foreign law. If the materials or sources were originally written in a language other than English, the party intending to rely upon them shall furnish all parties both a copy of the foreign language text and an English translation. . . .
Tex. R. Evid. 203. The record reflects that Arrendadora did not comply with the requisites of rule 203. We assume, without deciding, that the trial court's admission of the expert testimony and underlying statutes and their translations was error. See id.; see also Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 769 (Tex. App.-Corpus Christi 1999, pet. denied) ("A preliminary motion is . . . necessary to assure the application of the laws of another jurisdiction."). However, to reverse a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial court's ruling was in error and that the error was calculated to cause and probably did cause "the rendition of an improper judgment." Tex.R.App.P. 44.1; Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). We conclude that a trial court's admission of evidence and testimony regarding the laws of a foreign country, despite noncompliance with the notice requirements of rule 203, is subject to a harm analysis. See Owens-Corning Fiberglass Corp., 972 S.W.2d at 43; see also Raines v. Gomez, 118 S.W.3d 875, 877 (Tex. App.-Texarkana 2003, no pet.) (conducting harm analysis of trial court's error in not providing requisite forty-five-day notice of trial setting).
B. Harm Analysis
Zolezzi and Guerra de Zolezzi have not shown how any lack of thirty-day notice of the specific provisions of Mexican law on which Arrendadora relied caused "the rendition of an improper judgment." See Tex.R.App.P. 44.1. Significantly, they did not ask for additional time to prepare a response to the evidence submitted by Arrendadora. See Negrini v. Beale, 822 S.W.2d 822, 823-24 (Tex. App.-Houston [14th Dist.] 1992, no writ) ("Appellants failed to file a motion for continuance under Tex. R. Civ. P. 166a(g), or any other motion seeking additional time in which to respond to appellee's motion" for summary judgment.). Further, Zolezzi and Guerra de Zolezzi withdrew their motion to dismiss, which had asserted the applicability of New York and Mexico choice-of-law clauses in the documents, stating they did so "[a]fter further review of the applicable law." They then filed an amended answer that cited provisions of the same Mexican code on which Arrendadora relied. Finally, Zolezzi and Guerra de Zolezzi provided no authority contrary to the expert's conclusion that the ten-year statute of limitation under Mexican law applies to Arrendadora's claims. In short, they have not shown how the result of the trial would have been different if they had had the requisite thirty-day notice under rule 203. Accordingly, even if we were to conclude that the trial court erred in admitting the complained-of testimony and evidence, Zolezzi and Guerra de Zolezzi have not shown that the error was calculated to cause and probably did cause "the rendition of an improper judgment." Tex.R.App.P. 44.1; see Ed Rachal Found. v. D'Unger, 117 S.W.3d 348, 368 (Tex. App.-Corpus Christi 2003, pet. filed) (citing Owens-Corning Fiberglass Corp., 972 S.W.2d at 43).
III. CONCLUSION
We overrule Zolezzi and Guerra de Zolezzi's sole issue on appeal. We affirm the judgment of the trial court.