Aiman Barbarawi and Husam Barbarawi v. Adnan Ahmad ( 2008 )

Affirmed and Memorandum Opinion filed May 27, 2008

Affirmed and Memorandum Opinion filed May 27, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00790-CV

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AIMAN BARBARAWI AND HUSAM BARBARAWI, Appellants

V.

ADNAN AHMAD, Appellee

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 2004-15136

M E M O R A N D U M   O P I N I O N

Appellants, Aiman Barbarawi and Husam Barbarawi, appeal from a judgment in favor of appellee, Adnan Ahmad.  After a bench trial, judgment was rendered against appellants in their breach of contract suit and in favor of appellee in the amount of $33,000.00 for appellee=s tortious interference with prospective contract and business disparagement counterclaims.  In six issues, appellants challenge the trial court=s denial of a continuance and the sufficiency of the evidence.  We affirm.

BACKGROUND

Appellants and appellee were co-owners of a restaurant, A & A Mediterranean Café, Inc.  On June 24, 2003, appellants and appellee signed a contract entitled ABill of Sale and Sales Agreement@ (the AAgreement@), wherein appellants agreed to sell their combined 67% interest in the restaurant to appellee for $50,000.00, $25,000.00 payable immediately and $28,000.00 payable on or before October 10, 2003.^[1]  Appellee paid the initial $25,000.00, and appellants turned over their stock and the premises. 

Thereafter, appellants demanded the remaining $28,000.00, but appellee failed to tender payment.  According to appellee, he did not pay the remaining $28,000.00 because appellants refused to remove their names from the company=s bank accounts and refused to turn over all company assets.  Appellee also contends that appellants publicized false and  disparaging remarks to current and prospective restaurant patrons in an attempt to sabotage the restaurant=s sales.  Specifically, three witnesses, including appellee, testified that appellants told individuals in the Islamic community that the restaurant no longer served Halal meat.  Halal meat is lamb or beef that is slaughtered in accordance with Islamic law, a dietary requirement for most of the restaurant=s patrons.  Appellee claimed that the restaurant=s sales dramatically dropped after appellants made the false and disparaging remarks. 

Appellee also testified that appellants interfered with his attempts to sell the restaurant after appellee acquired their stock.  Appellee testified that a prospective purchaser, Kalid Massoud, offered to purchase the restaurant for $75,000.00, but rescinded his offer after appellants dissuaded him from purchasing the restaurant.  Appellee testified that appellants told Massoud that they were still the owners of the restaurant, that they had a judgment against the business, that the landlord was going to transfer the lease into appellants= names, and that they would be coming to the restaurant the following week to close down the business.  Appellee eventually sold the restaurant to Abraham Alhalies for $42,000.00, who also testified that appellants made similar disparaging remarks while he was negotiating with appellee for the purchase of the restaurant.

Appellants filed suit against appellee for breach of contract on March 26, 2004, and later added fraud and breach of fiduciary duty claims.  Appellee counterclaimed for tortious interference with prospective contract and business disparagement. The case was called to trial on May 29, 2007, and appellants requested a continuance on the basis that they were without legal representation.  The continuance was denied, and the case proceeded to a bench trial.  The trial court rendered judgment against appellants on their breach of contract, fraud, and breach of fiduciary duty claims, and in favor of appellee on his counterclaim in the amount of $33,000.00.  Thereafter, appellants= motion for new trial was denied, and they filed the instant appeal.  Appellants present the following issues: (1) the trial court erred by denying appellants= motion for continuance; (2) the trial court=s take-nothing judgment on their breach of contract claim is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust; (3) the evidence is legally and factually insufficient to uphold the trial court=s judgment in favor of appellee=s tortious interference with a prospective contract claim; (4) the evidence is legally and factually insufficient to uphold the trial court=s judgment in favor of appellee=s business disparagement claim; (5) the trial court erred in denying appellants= motion for new trial because they produced newly-discovered evidence that was material and would likely produce a different result in a new trial; and (6) there is insufficient evidence to support the damage award in favor of appellee.

STANDARDS OF REVIEW

When reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it.  City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).  We credit favorable evidence if a reasonable fact-finder could, and disregard contrary evidence if a reasonable fact-finder could not.  Id. at 827.  There is Ano evidence,@ or the evidence is legally insufficient when (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact.  Id. at 810-811. 

In a factual sufficiency review, we consider all the evidence in the record, both supporting and contrary to the finding.  Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, Ltd., 237 S.W.3d 379, 384 (Tex. App.CHouston [14th Dist.] 2007, no pet). We may set aside a verdict only if it is so contrary to the overwhelming weight and preponderance of the evidence that it is clearly wrong and manifestly unjust.  Id.   Because this was a bench trial without findings of fact and conclusions of law, all facts necessary to support the judgment and supported by the evidence are implied.  Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003);  BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).

MOTION FOR CONTINUANCE

Appellants first argue that the trial court erred by denying their motion to continue the trial.  The granting or denying of a motion for continuance rests within the sound discretion of the trial court.  State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984).   We will not disturb a trial court=s ruling absent an abuse of discretion.  Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004); Hycarbex, Inc. v. Anglo-Suisse, Inc., 927 S.W.2d 103, 112 (Tex. App.CHouston [14th Dist.] 1996, no writ).  In deciding whether the trial court abused its discretion, we review the entire record and determine whether the trial court=s ruling was clearly arbitrary and unreasonable.  In re E.L.T., 93 S.W.3d 372, 374-75 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  Appellants argue that the trial court abused its discretion in denying their motion for continuance because they were without counsel when the case was called for trial.  However, absence of counsel alone is not good cause for a continuance.  Tex. R. Civ. P. 253; Gendebien v. Gendebien, 668 S.W.2d 905, 907 (Tex. App.CHouston [14th Dist.] 1984, no writ). In civil cases in which the absence of counsel has been urged as grounds for a continuance, the movant is required to show that the failure to be represented at trial was not due the party=s own fault or negligence.  Crank, 666 S.W.2d at 94. Appellants have failed to make this showing.

Upon filing of this case, appellants were represented by Preston Goodwin.  Goodwin withdrew as appellants= counsel in December 2005, citing appellants= failure to pay for legal services rendered and failure to cooperate.  Appellants then retained Sandra Reyes, who withdrew in April 2007.  Reyes also withdrew on the basis of appellants= failure to pay.  After Reyes withdrew, appellants had more than a month before the trial setting to seek and retain counsel, but appeared at trial without legal representation.  Though appellants claim that they were diligent in seeking trial counsel and secured the services of a third attorney prior to the May trial date, there is no evidence in the record that they retained counsel after Reyes= withdrawal.  See Gendebien, 668 S.W.2d at 908 (finding no abuse of discretion where movant had one month=s notice of the trial date and failed to engage a new attorney for trial).  Additionally, the case was called to trial more than three years after appellants filed suit, and the trial setting was continued at least seven times at the request of both parties.  Appellants have failed to show that the absence of counsel was not due to their own fault or negligence.  We hold that the trial court did not abuse its discretion by denying appellants= motion for continuance.  We overrule appellants= first issue.

BREACH OF CONTRACT

In appellants= second issue, they contend that the trial court erred in rendering a take-nothing judgment on their breach of contract claim against appellee.  To recover in a breach of contract case, a plaintiff must prove: (1) the existence of a valid contract; (2) he performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff was damaged as a result of the defendant=s breach.  Mays v. Pierce, 203 S.W.3d 564, 575 (Tex. App.CHouston [14th Dist.] 2006, pet. denied).  Appellants= breach of contract claim rested exclusively on the testimony of Aiman Barbarawi, who testified that appellants entered into a valid contract with appellee for the purchase of the restaurant, and that appellee failed to pay the remaining $28,000.00 owed under the Agreement.  Appellants offered no evidence showing that they tendered full performance.  After appellants rested their case on Aiman Barbarawi=s testimony, appellee presented evidence of appellants= failure to perform their contractual obligations.  Appellee testified that appellants failed to: (1) resign from the corporation; (2) remove their names from the corporate banking accounts; and (3) turn over all corporate assets.  After reviewing this and other evidence in the record, we hold that the trial court=s implied finding that appellants breached the contract is not so against the overwhelming weight of the evidence as to be clearly wrong and unjust.  We overrule appellants= second issue.

TORTIOUS INTERFERENCE

In appellants= third issue, they contend that the evidence is legally and factually insufficient to uphold the trial court=s judgment in favor of appellee=s tortious interference with prospective contract claim.  To prevail on a tortious interference with prospective contract claim, a party must prove: (1) there was a reasonable probability that the parties would have entered into a contractual relationship; (2) the defendant committed an independent tortious or unlawful act that prevented the relationship from occurring; (3) the defendant did such act with a conscious desire to prevent the relationship from occurring or knew that the interference was certain or substantially certain to occur as a result of his conduct; and (4) the plaintiff suffered actual harm or damage as a result of the defendant=s interference.  Brown v. Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 381-82 (Tex. App.CHouston [1st Dist.] 2005, no pet.).

In its sufficiency argument, appellants challenge only the admissibility and credibility of appellee=s trial testimony.  Because the record does not reflect an objection by appellants, they have waived their hearsay challenge to appellee=s testimony.  Tex. R. App. P. 33.1(a)(1).  Furthermore, the credibility of appellee=s testimony and the weight to be given therein is within the exclusive province of the fact-finder, not the reviewing court.  Turner v. KTRK Television, Inc., 38 S.W.3d 103, 134 (Tex. 2000).  The appropriate vehicle to impugn credibility is argument, not objection to testimony.  Nevertheless, the record contains sufficient evidence from which a fact-finder could find that appellants tortiously interfered with appellee=s prospective contract with Massoud.  Appellee testified that he had accepted an offer of $75,000.00 from Massoud for the purchase of the restaurant and had obtained the landlord=s consent to transfer the property=s lease into Massoud=s name.  Appellee further testified that appellants willfully and intentionally interfered with his agreement by making false and disparaging remarks to MassoudB misrepresenting that he had liens and judgments against and ownership interest in the restaurantB to persuade Massoud to rescind his offer with appellee.  Alhalies testified that appellants made similar disparaging remarks while negotiating with appellee for the purchase of the restaurant.  Appellee testified that appellants= disparaging remarks caused Massoud to rescind his offer of $75,000.00, resulting in a lost profit of $33,000.00. Having applied the relevant standards of review, we hold that the evidence is legally and factually sufficient to sustain the trial court=s judgment in favor of appellee=s tortious interference with prospective contract claim.  We overrule appellants= third issue.^[2]

MOTION FOR NEW TRIAL

 In appellants= fifth issue, they contend that the trial court erroneously denied their motion for new trial based on newly-discovered evidence in the form of an affidavit by Aiman Barbarawi.  The affidavit contends that after trial, Aiman Barbarawi spoke with Massoud, who denied making the $75,000.00 offer to appellee and denied ever speaking with appellants and being dissuaded to purchase the restaurant.  We review a trial court=s denial of a motion for new trial based on newly-discovered evidence under an abuse of discretion standard and indulge every reasonable presumption in favor of the trial court=s refusal to grant a new trial.  Patriacca v. Frost, 98 S.W.3d 303, 307 (Tex. App.CHouston [1st Dist.] 2003, no pet.). To obtain a new trial based on newly-discovered evidence, a party must show that: (1) the evidence has come to light since trial; (2) it is not due to lack of diligence that it was not produced sooner; (3) the new evidence is not cumulative; and (4) the new evidence is so material that it would probably produce a different result if a new trial were granted.  Margraves v. State, 56 S.W.3d 673, 685 (Tex. App.CHouston [14th Dist.] 2001, no pet).

Aiman Barbarawi=s affidavit does not qualify as newly-discovered evidence because it could have been obtained prior to trial had appellants used reasonable diligence.  On January 20, 2006, appellee designated Massoud as a fact witness, having personal knowledge of his rescinding the offer based on appellants= tortious acts.  Because appellee identified Massoud as a witness a year before trial, appellants could have easily obtained the affidavit prior to trial.  See Frost, 98 S.W.3d at 307 (stating that newly-discovered evidence is evidence that was not, and could not have been, discovered using reasonable diligence). Because the evidence in the affidavit could have been obtained earlier, it does not qualify as newly-discovered evidence.  The trial court did not abuse its discretion by denying the motion for new trial.  We overrule appellants= fifth issue.

COMPENSATORY DAMAGES

In their final issue, appellants challenge the damage award in favor of appellee. Rather than challenge the evidence itself, appellants insist that because judgment should have been rendered in favor of their breach of contract claim, the $33,000.00 damage award should be offset by $28,000.00, which is the remaining amount owed under the Agreement.  Because we have found that the trial court did not abuse its discretion in finding against appellants= breach of contract claim, appellants= damage complaint is without merit. 

In support of his economic damages, appellee presented testimonial evidence showing his lost profit.  Appellee testified that he suffered a total loss in the amount of $33,000.00 for appellants= tortious interference with his prospective contract with Massoud.  Appellee arrived at this figure by subtracting $42,000.00, the amount for which he eventually sold the restaurant, from $75,000.00, the amount offered by Massoud.  The fact-finder has the discretion to award damages within the range of evidence presented at trial.  City of Houston v. Harris County Outdoor Adver. Ass=n, 879 S.W.2d 322, 334-35 (Tex. App.CHouston [14th Dist.] 1994, writ denied).  The damage award is an amount within the range of evidence presented at trial; therefore, we conclude that there is sufficient evidence to support the $33,000.00 damage award on appellee=s tortious interference with prospective contract claim.  We overrule appellants= sixth issue.

            We affirm the trial court=s judgment.

/s/        Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed May 27, 2008.

Panel consists of Chief Justice Hedges and Justices Fowler and Boyce.                      

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^[1]  The $28,000.00 included $3,000.00 previously owed to a Hiam Barbarawi.

^[2]  Where the judgment rests on multiple theories of recovery and one theory is valid, an appellate court need not address other theories.  Checker Bag Co. v. Washington, 27 S.W.3d 625, 634 (Tex. App.CWaco 2000, pet. denied).  Accordingly, we need not address appellants= challenge to the business disparagement claim articulated in their fourth issue.