OPINION
Who, if anyone, speaks for a Mexican union when the union leadership is mired in scandal? That is the central question in this three-way appeal concerning enforcement of a purported 2004 settlement agreement (the “Garnished Funds Agreement”) attempting to finally resolve 30 years of litigation. Among other things, the Garnished Funds Agreement provided for the distribution of certain garnished funds held in a New York bank account between the Petroleum Workers Union of the Republic of Mexico (the “Union”) and James Gomez, as receiver for Arriba Limited (“Arriba”).
Ultimately, all of the garnished funds were sent, to Mexico for a Mexican court to determine their ownership. Arriba and Ryerson then sued the Union for breach of the agreements, and the Union counterclaimed- for wrongful garnishment and breach of fiduciary duty among other allegations. The key issue for the jury to decide at trial was whether Ryerson and Noe Moreno Alvarez had authority to sign the agreements on behalf of the Union. The jury found that both men had both actual and apparent authority to sign the Garnished Funds Agreement and Alvarez had actual and apparent authority-to sign the Ryerson Agreement. In its judgment, the trial court declined to award monetary damages to any party but declared that Arriba was entitled to enforce. the 1986 Judgment against the Union anywhere except in Mexico. The court further awarded Arriba its court costs.
In its. appeal, the Union contends: (1) the Garnished Funds Agreement is illegal under Mexican Law and therefore cannot be enforced; (2) Arriba and Ryerson are precluded from enforcing the Garnished Funds Agreement under the doctrine of res judicata; (3) the evidence is legally and factually insufficient to support the jury’s finding that the signatories had actual or apparent authority to sign the Garnished Funds Agreement; (4) the Garnished Funds Agreement lacked consideration; (5) the trial court should have applied Mexican law to the authority issues; (6) the trial court erred in its jury instruction oh apparent authority; (7) the trial court erred in denying motions for mistrial when evidence was revealed to the jury that had
I. Background
The parties largely agree on the order of relevant events and the identities of the key players. The main factual disagreements revolve around the relationships between the players and the events. Essentially, Arriba contends that the Union has regularly employed a scheme of using certain people or entities to enter agreements and then claiming that those people or entities were without authority to bind the Union. Meanwhile, the Union asserts that Arriba has continually dealt with people and entities that did not have authority to bind the Union and then has sought to hold the Union accountable for the other parties’ promises.
A. The 1984 Contract and 1986 Judgment
The relevant history begins in 1984 when Texas attorney David Blaek and businessman Billy • Flanigan approached certain Mexican individuals—whom Black and others testified represented the Union—with a proposal for the refinement of residual oil from Mexican refineries.
In June 1985, Arriba filed a lawsuit against the Union, the Commission, and certain individuals in Harris County, Texas (sometimes, the “Judgment Debtors”), alleging breach of the 1984 contract. When the Union failed to answer in the lawsuit,
B. The Joint Venture Agreement, Release of 1986 Judgment, Resulting Litigation, and Second Judgment
According to Black, he then began seeking assets of the Judgment Debtors in the United States and managed to discover a safe deposit box owned by one of the individual defendants. As described by Black, Arriba soon was approached by Union representatives with an interest in resolving their disputes. A new agreement was entered in 1987, a joint venture between Arriba and Comater, S. de R.L. (“Coma-ter”).
It is undisputed that no residual oil was provided by Comater or the Union pursuant to the joint venture agreement. Thus, Arriba filed a new lawsuit in 1989, alleging breach of the joint venture agreement and claiming that the 1987 release was unsupported by consideration. Arriba named the Judgment Debtors as defendants but not Comater. Arriba received another default judgment in 1989 (“Second Judgment”). Among other things, the Second Judgment purported to rescind the 1987 release and revive the 1986 Judgment.
In 1990, the Union filed a bill of review seeking dismissal of the Second Judgment. Although the trial court denied relief, the First Court of Appeals reversed the trial court and remanded for trial. See Comm’n of Contracts of Gen. Exec. Comm. v. Arriba, Ltd.,
C. Garnishment of Funds in New York
In May 2002, at the behest of the Mexican government, the United States government obtained a restraining order in a United States district court in New York freezing approximately $43 million in a New York bank account. Allegedly, these funds had been embezzled as a part of the Mexican political scandal commonly referred to as “Pemexgate.”
Arriba then sought to negotiate a settlement of all claims between the parties.
D. Negotiations and Garnished Funds Agreement
At this time, Arriba was represented by Stan Nelson, a Texas attorney hired by the receiver, Gomez. Nelson and Black negotiated on behalf of Arriba primarily with Ryerson, a Texas attorney who began representing the Union in Arriba matters in 1990. Ryerson was hired to represent the Union by one of its Mexican lawyers, Ruben Choreno. As part of his duties, Ryer-son, who is not a trial attorney, hired other lawyers to take the lead at trial and in the appeals, but, according to numerous witnesses, continued to provide assistance and direction to the litigators and appellate specialists and maintain client contact. The Union contends, however, that by the time the funds were restrained in New York, Ryerson was no longer actively engaged in representing the Union, having taken an in-house counsel position with another company. Ryerson and Arriba, on the other hand, assert that Ryerson was always involved on some level in the Union-Arriba matters and was never relieved of his duties for the Union until after the Garnished Funds Agreement was signed. Ryerson stated that his employer was fully aware of and approved his continued work on Arriba matters while he was employed with the company.
Ryerson testified that, given the charges against the top leaders of the Union, he wanted to ensure that whomever he dealt with from the Union had the proper authority. He named three men as his primary contacts regarding settlement: Cho-reno, LaQuina, and Alvarez. According to Ryerson, Choreno and Alvarez both had valid powers of attorney from the Union, Choreno was a long-time lawyer for the Union, and either. Choreno or ..LaQuina told Ryerson to deal with Alvarez on Union business. Ryerson stated that he also confirmed Choreno’s and LaQuina’s authority with the office of Mexican President Vicente Fox. The Union points out that during that time period, LaQuina had no official role within the Union, after having served a prison sentence on weapons charges, and that Choreno had been replaced on Arriba-related matters by a different attorney, Eduardo Gonzalez, years before the Garnished Funds Agreement was entered.
Under article III of the Garnished Funds Agreement, Arriba was to receive 52 percent of. the garnished funds and the Union was to receive the remainder, minus $1 million to Gomez for his expenses, as Arriba’s receiver. Article III further, provides that the parties would “use their best efforts to resolve any outstanding claims affecting the Garnished Funds that have been made, or which may be made, in the action pending in the United States District Court, Eastern District of New York.” Under article IY, the agreement provided that the Union waived any claims challenging the validity of,the 1986 Judgment and would not contest enforcement of that judgment. The agreement, however, limited to some degree Arriba’s ability to collect. First, it specified that Arriba would not attempt to enforce the 1986 Judgment prior to distribution of the garnished funds. Then, if for some reason the garnished funds were not distributed according to the terms of the agreement, Arriba could enforce the judgment “in any legal manner, anywhere in the world, except in the country of Mexico.” But, if the funds were distributed according to the agreement, the judgment then “could be enforced anywhere without restriction.” Alvarez also signed a separate agreement in November 2004 purportedly binding the Union to pay Ryerson $7 million in legal fees, also out of its 48 percent share of the garnished funds.
It was undisputed at trial that the individuals negotiating the agreements intentionally did not share such information with Deschamps or Prieto, who were at the time still, respectively, the Secretary General and number two official of the Union. The Union identifies this fact as evidence that the negotiators were not authorized to settle the case on behalf of the Union; whereas, Arriba and Ryerson contend that this secrecy made sens.e, as Des-champs and Prieto were facing criminal charges at the time.
On August 21, 2006, the trial court dissolved Arriba’s and Ryerson’s writs of garnishment.
E. Course of the Current Litigation
In the present lawsuit,.. Arriba seeks monetary damages for breach of the Garnished Funds Agreement as well as specific performance tq collect on the 1986 Judgment. Ryerson seeks monetary damages as well as attorney’s fees for breach of the Ryerson Agreement and claims the Union committed fraud. The Union raises claims
The jury determined that Ryerson and Alvarez each had both actual and apparent authority to sign the Garnished Funds Agreement on behalf of the Union and that Alvarez had actual and apparent authority to sign the Ryerson Agreement on behalf of the Union. The jury further found that Ryerson did not commit fraud against the Union, the Union did not defraud Ryerson, and Ryerson and Arriba did not conspire to harm the Union. Lastly, the jury found reasonable and necessary attorney’s fees for Ryerson in prosecuting his breach of contract claim. The trial court refused to submit the Union’s counterclaims for wrongful garnishment or breach of a fiduciary duty to the jury.
In its final judgment, the trial court held that Arriba and Ryerson should take nothing on their claims for damages but that Arriba was entitled to recover on its claim for specific performance of article TV of the Garnished Funds Agreement. More specifically, the court ordered that Arriba was “entitled to enforce the [1986 Judgment] in any legal manner, anywhere in the world, except in the country of Mexico.” In a separate “Opinion and Order,” the trial court further explained that the Garnished Funds Agreement itself provided that Arriba was to recover money only if the New York funds were released pursuant to the writs of garnishment, and if the funds were not so released, the agreement provided that Arriba would be entitled to enforce the 1986 Judgment in any legal manner anywhere in the world except Mexico. Since the trial court dissolved the writs and the funds were not released pursuant to the writs, the trial court concluded that' Arriba was not entitled to monetary damages but was entitled to the bargained for specific performance on the 1986 Judgment. All parties have- appealed.
II. The Union’s Appeal
A. Legality of Agreements
In its first issue, the Union contends that the Garnished Funds Agreement was illegal under Mexican law and therefore unenforceable as a matter of law. See Cruse v. O’Quinn,
The Union pleaded illegality of the Garnished Funds Agreement as an affirmative defense.
Texas law prescribes specific procedures for proving and determining the law of foreign countries. These procedures are principally set forth in Texas Rule of Evidence 203, which states in full:
Rule 203. Determining Foreign Law
(a) Raising a Foreign Law Issue. A party who intends to raise an issue about a foreign country’s law must:
(1) 'give reasonable notice by a pleading or other writing; and
(2) at least 30 days before trial, supply all parties a copy of any written materials or sources the party intends to use to prove the foreign law.
(b) Translations. If the materials or sources were originally written in a language other than English, the party intending to rely on them must, at least 30 days before trial, supply all parties both a copy of the foreign language text and an English translation.
(c) Materials the Court May Consider; Notice. In determining foreign law, the court may consider any material or source, whether or not admissible. If the court considers any material or source not submitted by a party, it must give all parties notice and a reasonable opportunity to comment and submit additional materials.
(d) Determination and Review. The court—not the jury—must determine foreign law. The court’s determination must be treated as a ruling on a question of law.
Rule 203 is often described as a “hybrid rule by which the presentation of the foreign law to the court resembles the presentment of evidence but which ulti
, The Union does not mention Rule 203, much less assert that it fulfilled any of the rule’s requirements in presenting the Mexican Attorney General’s declaration. The Union instead relies on two federal cases for the proposition that it proved illegality as a matter of law through the declaration: United States v. Pink,
Here, the Union neither timely offered the declaration pursuant to Rule 203 nor established illegality as a matter of law. The Union’s attachment of the attorney general declaration to a post-hearing brief on its JNOV motion did not conclusively establish the illegality of the agreements as the Union contends. Accordingly, we overrule the Union’s first issue.
B. Res Judicata & Collateral Estoppel
In its second issue, the Únion contends that Arriba and Ryerson’s claims based on thé Garnished Funds Agreement are barred by the doctrines of res judicata and collateral estoppel due to a 2008 judgment the Union obtained from a Mexican' court holding that the settlement agreement was a nullity. The Union asserts that it met all of the requirements for filing foreign judgments for full recognition, see Texas Civil Practice and Remedies Code chapter 36 (the Uniform Foreign Country Money— Judgments Recognition Act) and Arriba or Ryerson failed to object.
“Res judicata precludes relitigation of claims that have been finally adjudicated, or that arise out of the same subject matter and that could have been litigated in the prior action,” Amstadt v. U.S. Brass Corp.,
Under chapter 36 of the Civil Practice and Remedies Code, a foreign judgment that meets the requirements of the chapter, is filed with proper notice, and is. not refused recognition for the grounds specified in the chapter, becomes “conclusive between the parties to the extent that it grants or denies recovery of a sum of money.” Tex. Civ. Prac. & Rem. Code § 36.004.. Sections 36.0042 and 36.0043 set forth detailed rules for notice, requiring that the party seeking recognition file an affidavit with the court clerk providing identifying information for the judgment creditor and debtor so that the clerk can ensure notice or, alternatively, provide proof that notice of the filing of the foreign judgment was mailed to the other party. Id. §§ 36.0042-.0043. Sections 36.0044 and 36.005 set forth, respectively, the procedures for contesting recognition and available grounds for nonrecognition. Id. §§ 36.0044-.005. Under section 36.005(a)(2), a foreign judgment is not considered'conclusive if the foreign country did not have personal jurisdiction over the defendant. Section 36.006- further governs when a court can refuse to recognize a foreign judgment because the issuing court lacked personal jurisdiction over the defendant. Id. § 36.006.
Arriba filed its motion to enforce the Garnished Funds Agreement in March 2005. In January 2006, the Union filed a lawsuit in a Mexican court challenging the validity of- the agreement.- Arriba -and Ryerson have steadfastly maintained that they never received notice of the Mexican lawsuit; indeed, they made no appearance in the Mexican court, and the equivalent of a default judgment was entered in October 2008, holding, among other specifics, that the Garnished Funds Agreement was a nullity. In March 2012, the Union alleges it filed a Notice of Filing of Foreign Country Judgment with the Harris County Clerk’s Office, seeking to domesticate the Mexican judgment. The notice of filing is not in our record.
The Union thereafter raised its res judicata and collateral estoppel defenses in the present action in two motions for partial summary judgment and its motion for JNOV, attaching the Mexican judgment to each motion.
In its opening brief to this court, the Union spends a little over one page setting forth procedural facts and then stating in conclusory fashion that the Mexican judgment was properly domesticated and thus any claims based on the settlement agreement are barred by res judica-ta and collateral estoppel. Citations to legal authority and the record are scant and unhelpful. The Union merely argues “Arri-ba unquestionably had notice of the Union’s filing, yet it failed to file a motion for nonrecognition of the judgment within the time periods provided in section 36.0044.” As it did in the trial court, the Union leaves most of the grounds appellees raised for denying the motions unad-dréssed in its briefing.
C. Actual Authority
In its third issue, the Union contends that the evidence was legally and factually insufficient to support the jury’s findings in response to jury question 1 that Alvarez and Ryerson had actual authority to sign the Garnished Funds Agreement on the Union’s behalf.
Question 1 instructed the jury on actual authority as follows:
A party’s conduct includes the conduct of another who acts with the party’s actual authority.
Actual authority for another to act for a party must arise from the party’s agreement that the other act on behalf and for the benefit of the party. If a party so authorizes another to perform an act that other party is also authorized to do whatever else is proper, usual, and necessary to perform the act expressly authorized.
Absent actual or apparent authority, an agent cannot bind a principal. Flutobo, Inc. v. Holloway,
2, The Powers of Attorney
The Union argues that proof of actual authority in this case turns on the validity of the alleged powers of attorney given to Choreno (plaintiffs exhibit 22) and Alvarez (defendant’s exhibit 50-B), since Arriba admitted it did not have direct discussions about the ■ Garnished Funds Agreement with any Union official.
The Union begins its challenge to the powers of attorney by urging that the trial court should have applied Mexican law to the question of actual authority under the powers of attorney; it then relies on statements made by its experts regarding Mexican law that were presented in an offer of proof at the conclusion of trial. These arguments, however, are not well-placed in a challenge to the sufficiency of the evidence supporting the jury’s actual authority finding. Since the trial judge overruled the Union’s motion to have Mexican law apply before trial began, the case was not tried under Mexican law. The jury never heard either the Union’s or Arriba’s experts on Mexican law, so that testimony is not relevant to a review of the evidence the jury did consider. Cf. Transp. Ins. Co. v. Faircloth,
The two powers-of-attorney exhibits are somewhat difficult to read, as the originals are in Spanish and the translations are not always in standard English. Exhibit 22 purports to be a “General Power of Attor
The Union additionally complains that the powers of attorney did not contain any language specifically authorizing Choreno or Alvarez to settle the case or permitting Choreno to delegate any authority to Ryerson or Alvarez to sign the agreement, citing In re Estate of Miller,
3. Ryerson’s Testimony and Other Evidence
Contrary to the Union’s emphasis, however, the evidence offered to support the actual authority claim was not limited to the powers of attorney; Much of the additional evidence came in testimony from and regarding Ryerson. Ryerson testified that he had been hired to represent the Union in the subject litigation. He acknowledged that his relationship with the Union did not permit him to settle the case without the Union’s authorization, but he steadfastly maintained that he received that authorization. The Union, on the other hand, portrays Ryerson’s representation of
Ryerson testified that Choreno hired him to represent the Union in matters pertaining to Arriba in 1990 and that he remained counsel for the Union until he filed his intervention in the present case in February 2005. Documentary and testimonial evidence showed that Ryerson was the lead attorney for the Union in Arriba matters for many years, with authority to hire other lawyers and generally guide the litigation. Ryerson stated that the Union consistently left it solely to him to protect their interests in these matters. It is undisputed that no documents were filed with the tidal court or communications made to opposing parties in this matter indicating Ryerson was no longer representing the Union prior to execution of the Garnished Funds Agreement. David Black, an attorney and part owner of Arriba, testified that he considered Ryerson to be his main legal adversary from 1990 to 2004 and that he dealt “constantly” with Ryerson during that time period. Nelson, Arriba’s attorney for many years of litigation, stated that Ryerson was the Union’s lead attorney and clearly was the attorney with the closest relationship with the Union itself.
The Union presented Eduardo Gonzalez as its chief witness to portray Ryerson as effectively no longer representing the Union at the time the Garnished Funds Agreement was signed. Gonzalez, external counsel for the Union in Mexico, replaced Choreno in overseeing the Arriba cases for the Union in1992. He described Ryerson’s participation as dwindling to nothing, as he only attended the 1997 trial for about' 15 minutes and had taken an in-house counsel job with another company. Several aspects of Gonzalez’s testimony, however, were disputed by other witnesses. For example, the Union’s trial counsel for the 1997 trial, Bill Burke, testified that Ryerson attended the entire trial and was active in both developing the case and communicating With the client. Additionally, Gonzalez stated that if Ryerson wanted to contact the client, he should have gone through Gonzalez, but several witnesses, including Burke, described Ryerson as having a close working relationship with the Union.
Ryerson testified that he was initially hired for the Union by Choreno, and some early documents filed in the litigation bear Choreno’s signature. Ryerson further described Choreno as having been a longtime attorney for the Union.
Ryerson further, testified that extensive negotiations leading up to the Garnished Funds Agreement ensued between him—• with Choreno as his primary contact with the Union—and Nelson and Black, representing Arriba. Nelson also testified that, given past history, it was “ridiculous” to suggest Ryerson was not representing the Union at the time of the negotiations. Meetings were had, telephone calls were made, and emails were sent back and forth with proposals. Both sides had to discuss proposals with and get approval from their respective clients. Nelson said that he dealt with Ryerson because “he was the guy,” he had the relationship with the Union, Nelson further testified that he also dealt with Choreno and Alvarez regarding the settlement and thinks LaQuina may have been involved as well. Ryerson additionally testified that it made no sense for him to have negotiated the Garnished Funds Agreement if he did not think he was representing the Union: “There’s no purpose to concoct something that isn’t going to take place.”
The Union attacked Ryerson’s testimony by pointing out that he failed to inform Deschamps, Aldana, the Union’s executive committee; or the other lawyers representing the Union in .the garnishment action about the Garnished Funds Agreement until he filed his motion for intervention in the garnishment action. Indeed, Arriba also was cautioned not to inform these individuals. Ryerson explained that Des-champs and Aldana had been charged with illegally taking the funds and noting that the executive committee was comprised of “Deschamps’ people.” Ryerson further said, however, that he believéd others in the Union were aware of the settlement.
4. Conclusion
Arriba and Ryerson presented significant evidence that people with power in the Union authorized the Garnished Funds Agreement. That evidence was not without its weaknesses, particularly the lack of official titles within the Union for the key actors, LaQuina, Choreno, Alvarez, and Ryerson, and the lack of direct proof of any authority the Mexican president’s office may have held. However, given the unique and complex picture presented in this case concerning Mexican politics and the Union’s internal workings, we cannot say that the jury’s verdict was unreasonable or so contrary to the overwhelming weight of the evidence as to be wrong and manifestly unjust. See City of Keller,
In its fifth issue, the Union contends that the Garnished Funds Agreement was invalid due to a lack of consideration. Generally, a contract must be supported by consideration to be enforceable. Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson,
The Union insists that under no reasonable interpretation of the Garnished Funds Agreement did it receive any benefit from entering the agreement, nor did Arriba incur any detriment. However, as Arriba notes, at the time the agreement was entered, Arriba had garnished $43 million in Union funds in a New York bank account, Indeed, Arriba was actively pursuing claims that could potentially have resulted in the entirety of the New York funds being awarded to it. Under the Garnished Funds Agreement’s terms, the Union was to be entitled to 48 percent of those funds, minus $1 million to Gomez, without having to continue lengthy and expensive litigation. Viewed from the time that the agreement was entered, this provided a clear benefit to the Union. See generally' Restatement (Second) of Contracts § 74 (“Settlement of Claims”); In re Estate of Childs, No. 04-15-00623-CV,
The Union additionally notes that the agreement reinstated the 1986 default judgment, which entitled Arriba to recover even more than .the garnished $43 million. While' that' is true, it did not prevent the immediate return of the 48 percent (minus $1 million), and the agreement potentially restricted Arriba’s ability to recover on the 1986 Judgment to “outside of Mexico,” Moreover, David Black, as well as other witnesses, testified regarding how difficult it was to locate Union assets outside of Mexico, Thus, the reinstatement of the 1986 Judgment did not deprive the settlement agreement of consideration,
E. Application of Mexican Law
In issue six, the Union contends that the trial court erred .in determining
As discussed regarding the Union’s first issue, supra, the procedures for proving and determining the law of foreign countries are set forth in Texas Rule of Evidence 203. Tex. R. Evid. 203. A party relying on foreign law must strictly plead and prove the law. Nguyen v. Nguyen,
The Union urged the application of Mexican law to the authority issue in a motion to.apply Mexican law, two motions to reconsider the denial of that motion, assorted other responses and letters to the court, and two hearings.
We turn first to the Union’s contention that the trial court should have held an evidentiary hearing on the foreign law issue.
Next, we consider the' Union’s contention that the trial court should have permitted it to present evidence to the jury regarding the interpretation of the powers of attorney under Mexican law. We begin by noting that it is not clear on what basis the Union contends that it should have been permitted to introduce this testimony.
The Union may be suggesting that it should have been permitted to offer its expert testimony to the jury on a mixed question of law and fact. See GTE Sw., Inc. v. Bruce,
Moreover, in order to support reversal of the trial court’s judgment, it is not enough for the Union to merely argue that the trial court should have assessed the powers of attorney under Mexican law; it needed to have established that the trial court’s failure to apply Mexican law probably caused the rendition of an improper judgment or probably prevented the Union from properly presenting its case on appeal. See Tex. R. App. P. 44.1(a) (“No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the .,. error complained of: (1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals.”); Ford Motor Co. v. Castillo,
The Union has failed to establish that the trial court erred in failing to have an eyidentiary hearing regarding Mexican law or in refusing to permit the Union’s legal experts to testify before the jury, and it has failed to, demonstrate harm in the event the court did err. Accordingly, we overrule the Union’s sixth issue.
F. Timely Disclosure of Evidence
In its eighth and ninth issues, the Union asserts that the trial court erred in deny
We review a trial court’s denial of a motion for mistrial under an abuse of discretion standard. E.g., Schlafly v. Schlafly,
1. Alvarez’s Identity
The Union’s first motion for mistrial concerned testimony surrounding Arriba’s attempts to verify Alvarez’s identity prior to execution of the Garnished Funds Agreement. During the Union’s questioning of Arriba receiver Gomez, he suggested that his attorney in the Bahamas, Ruth Bowe-Darville, performed some degree of due diligence to make sure Alvarez was who he claimed to be prior to execution of the agreement. Although Gomez did not recall the specifics of how this was done, he stated that he might review a passport or power of attorney for identification purposes.
The Union suggests Gomez’s testimony was grounds for a mistrial because Arriba failed to acknowledge Bowe-Darville’s role in its discovery responses or produce the documents she used to verify Alvarez’s identity.
Furthermore, the Union failed to timely object to Gomez’s testimony regarding Bowe-Darville’s actions or request that the jury be instructed to disregard his answers at the time it elicited the testimony. See Tex. R. App. P. 33.1(a) (requiring timely request, objection, or motion to preserve complaint for appellate review); Kheir v. Progressive Cty. Mut. Ins. Co., No. 14-04-00694-CV,
2. Incident at Mexican Bank
The Union’s second motion for mistrial was based on Ryerson’s attorney’s questioning of one of the Union’s lawyers, Gonzalez, about an incident that occurred at a Mexico City bank. According to Ryerson’s own testimony, he expected to receive that day a $3.5 million cash payment for services, but the Union’s secretary general, Deschamps, took $2.5 million of the cash, leaving Ryerson with only $1 million. In his testimony, Gonzalez denied several aspects of Ryerson’s story, ’ including that Gonzalez had told Ryerson he could “either take a million dollars or nothing.” Ryerson’s attorney then asked Gonzalez: “If Mr. [Juan] Contalba gave an' affidavit saying that Mr. Ryerson only received a million dollars, would you have any reason to refute that?”
The only authority the Union cites under this issue is the Lopez case discussed above, which relies on Rule 193.6, also discussed above. See Tex. R. Civ. P. 193.6; Lopez,
. Furthermore, at the time the affidavit was mentioned, the Union received the exact relief it requested, ie., its hearsay objection was sustained and the affidavit was not mentioned again. The Union did not raise a timely objection based on Rule 193.6 or timely request an instruction to the jury or a mistrial. See Tex. R. App. P. 33.1(a) (requiring timely request, objection, or motion to preserve complaint for appellate review); State Bar of Tex. v. Evans,
G. Counterclaims
Lastly, in issue ten, the Union contends the trial court erred in declining to submit jury questions regarding the Union’s claim for wrongful garnishment damages against Arriba and Ryerson and claims of breach of fiduciary duty against Ryerson. A party is entitled to a jury question on a properly pleaded cause of action if there is some evidence to support its submission. See Tex. R. Civ. P. 278; Hiles v. Arnie & Co., P.C.,
1. Wrongful Garnishment
The Union claims that the trial court found the writs of garnishment to be
In its reply brief, the Union argues that Arriba’s garnishment was wrongful because it “ultimately hinged on the validity of the ‘contractual reinstatement’ of the 1986 Default Judgment.” The Union, however, does not cite any evidence establishing as a matter of law that the reinstatement was invalid; moreover, that issue is apparently still in dispute in the pending litigation between the parties concerning the 1989 default judgment. In order to be entitled to a jury question on damages, the Union must first prevail on its wrongful garnishment action by motion for summary judgment or trial on the merits. The motion to dissolve was neither. See id. The Union has failed to demonstrate its entitlement to a jury charge question on the issue of wrongful garnishment damages.
2. Breach of Fiduciary Duty
The Union asserts that Ryer-son used his position as the Union’s attorney to negotiate two contracts that benefit-ted Ryerson to the Union’s detriment and, therefore, breached his fiduciary duty to it. The elements of a breach-of-fiduciary-duty claim against an attorney are (1) the existence of a fiduciary relationship, (2) a breach of a fiduciary duty by the attorney defendant, and (3) resulting damages to the plaintiff. Frankoff v. Norman,
III. Cross-Appeals
In their cross-appeals,- Arriba and Ryer-son contend the trial court erred in refusing to award them any monetary damages based on the Union’s breach of, respectively, the Garnished Funds Agreement and the Ryerson Agreement. The breach of contract claims were submitted to the judge after the jury decided the question of authority to enter the agreements, among other issues. In its judgment, the trial court concluded that Arriba and Ryerson were not entitled to monetary damages but Arriba was entitled to specific performance concerning the Garnished Funds Agreement’s provisions regarding enforceability of the 1986 default judgment.
A. Standards of Review
To. prevail on a breach of contract claim, a party must establish the following elements: (1) a valid contract existed between the plaintiff and the defendant, (2) the plaintiff tendered performance or was excused from doing so, (3) the defendant- breached the terms of the contract, and (4) the plaintiff sustained damages as a result of the defendant’s breach. West v. Triple B Servs., LLP,
' The construction of an unambiguous written contract is a question of law for the court. See Matagorda Cty. Hosp. Dist. v. Burwell,
When reviewing for legal sufficiency, we consider the evidence in the light most favorable to the finding and indulge every reasonable inference that supports the challenged finding. City of Keller v. Wil
A. Garnished Funds Agreement
Arriba begins by asserting that the trial court misconstrued the Garnished Funds Agreement as only requiring distribution of the garnished funds if they were released pursuant to the writs of garnishment. In its “Opinion and Order,” issued the same day as the judgment, the trial court indeed stated, “The Garnished Funds Agreement provided terms for dividing the garnished funds if they were released pursuant to the writs of garnishment” (emphasis added). The court went on to conclude:
[t]he writs of garnishment were dissolved by this Court and the funds were not subject to the distribution provisions stated in the Garnished Funds Agreement. Therefore, based on the language of the Garnished Funds Agreement, the Court finds that there was no breach of contract based on the garnished funds.
The trial court further emphasized that the Garnished Funds Agreement contained specific consequences depending on whether the funds were or were not distributed pursuant to the terms of the agreement. For example, under article IV of the agreement, if the funds were, not so distributed, Arriba could enforce the judgment “in any legal manner, anywhere in the world, except in the country of Mexico,” but if the funds were so distributed, the judgment then “could be enforced anywhere without restriction.”
Arriba argues that the trial court’s emphasis on the consequences for nondistri-bution was misplaced. According to Arriba, the fact that the agreement contained certain consequences did not otherwise excuse the Union from its obligation to .pay Arriba 52 percent plus $1 million of .the garnished funds. Arriba instead stresses that article III of the Garnished Funds Agreement provides that “the funds ... shall be distributed” (emphasis added). Arriba insists that the Union’s failure to distribute or pay funds to Arriba constituted a breach of the agreement.
We begin our analysis by noting that the Garnished Funds Agreement clearly considered distribution of particular funds and not a general or unconditional payment obligation by the Union to Arriba; there is no other reasonable way to read the agreement’s identification of the funds and distribution of percentages rather than specific amounts.
The difficulty with Arriba’s position is that even if its interpretation of the agreement is correct, ie., that the Union promised to pay Arriba 52 percent plus $1 million of the funds in the New York bank account regardless of whether they were distributed according to the writs of garnishment, Arriba still has to demonstrate breach and an injury resulting from that breach in order to be entitled to monetary damages. See West,
While it is true that the Union did not promptly present an agreed order to the
As to using best efforts to resolve outstanding claims, the Union maintains that having the funds—and hence the issues concerning ownership of the funds— sent back to Mexico to be decided by a Mexican court was a reasonable effort to •resolve other outstanding claims. This was the. result sought by the Mexican government and the United States government on behalf of the Mexican government and permitted by the federal district court. Arriba does not cite to any evidence suggesting that return of the funds to Mexico was not a reasonable effort to resolve the outstanding claims. Arriba has therefore failed to establish breach, causation, • or injury based on the parties’ “best efforts” obligation.
Because Arriba has not established any basis for it to be awarded actual damages, the trial court did not err in declining to do so. Accordingly, we overrule Arriba’s sole issue.
B. Ryerson Agreement
The one page Ryerson Agreement provides in relevant part that “[w]ith respect to the, recovery of the [garnished funds], we have agreed ... that Carlos A. Ryerson, Esq., shall receive, of the 48% that are apportioned or belong to [the Union,] the amount of US $7,000,000.00 as legal fees _” In his appellate briefing, Ryerson acknowledges the obvious, that the Ryerson Agreement looked solely to particular funds for payment of his legal fees and did not create a general or unconditional obligation to pay those fees. In short, if the particular funds, i.e., the Union’s 48 percent share of the funds subject to the Garnished Funds Agreement, were unavailable, then the Ryerson Agreement placed no obligation on the Union to pay Ryerson’s legal fees. See Walston,
Having overruled all issues bought by the parties in these three appeals, we affirm the trial court’s judgment.
Notes
. In 1998, Gomez was appointed as the receiver for Arriba by a Bahamian court due to a disagreement between its two equal owners. Gomez, acting in his role as receiver, will be referred to as "Arriba" when necessary for clarity.
. Flanigan was deceased by the time of trial in the present case.
. The oil industry in Mexico has been nationalized and is controlled by the state-owned petroleum company Petróleos Mexicanos, better known as "Pemex.” The Union is an association organized for the benefit of Mexican oil industry workers. It is unclear from the record exactly how the Union was authorized to sell residual oil, but there is some indication that Pemex was aware of the arrangement.
. Apparently, as a nonprofit institution in Mexico, the Union was not permitted to enter for-profit contracts. Evidence indicated that the Commission acted as the Union’s agent in signing contracts that the Union was then to perform and that there was a very close association between the two entities, including shared leadership. See Comm’n of Contracts of Gen. Exec. Comm. v. Arriba, Ltd.,
. The Union disputes it received proper notice of this lawsuit.
. Black testified that Union representatives told him that the joint venture agreement needed to be executed with Comater "for the Union” due to negative publicity in Mexico related to the 1986 Judgment.
. The Second Judgment also found that the underlying obligation is "just and does not violate Mexican law or public policy."
. Also in 1990, the then-Attorney General of Mexico apparently authored an official communique which the Union argues declared that agreements for the sale of Mexican oil such as the 1984 contract and the joint venture agreement were void and unenforceable under Mexican law.
. It is unclear from the record, and apparently disputed, as to whether these funds rightfully belonged to the Union or Pemex.
. The negotiations also apparently involved the possibility that Arriba and the Union would work together to pursue other funds embezzled from the Union, but the Garnished Funds Agreement did not include any provisions regarding such a joint venture.
. There was testimony that LaQuina’s conviction was "political payback” for his refusal to support a particular presidential candidate. In his testimony, Gonzalez attempted to minimize Ryerson’s role; however, his testimony was at times inconsistent and was contradicted to some degree by another of the Union's witnesses.
. Ultimately, neither Deschamps nor Prieto was convicted of the crimes charged and both retained their positions in the Union.
. The Mexican attorney general had filed an amicus curiae brief in this matter in 2005 requesting that the writs be dissolved so that the funds could be sent back to Mexico. In the brief, the attorney general noted that it was suspected the money had been embezzled.
. The first page of the translation is num- ' bered as page 19 arid the first full paragraph is numbered as paragraph 19. There is also a continuation of a footnote on that first page from a prior page. In the original Spanish declaration, the paragraphs are not numbered and there are no footnotes.
. The Union’s live pleading states, in part, "it was illegal .,, for anyone in Mexico (other
. The declaration was at that point already in the trial court’s record as it was originally attached to an amicus curiae brief by the Mexican Attorney General seeking return of the New York funds to Mexico. The declaration was not, however, introduced at trial.
. A Union attorney at the hearing stated: “[W]e believe that there is testimony in the record from Mr. Munoz, or one of the other Union witnesses, to the fact that the underlying '84 contract was illegal and it violated the laws of Mexico.” The Union does not rely in its brief on this evidence.
.The section of the brief on illegality begins, "During the hearing, the Court also asked about evidence supporting the Union’s illegality defense .... ”
. The Union may be intending to rely on foe D’Angelo court's holding that the Mexican Attorney General’s declaration in that case was an "official declaration” of Mexican law to establish that the declaration in the present case is also an "official declaration” of Mexican law. However, the decision by the court in D’Angelo was based on the evidence presented in that case.
. In its Motion for New Trial, the Union states its notice of filing of foreign judgment was assigned cause number 2012-16158.
. The Union did not plead res judicata or collateral estoppel as an affirmative defense.
. Denial of the motion for summary judgment did not preserve any issues raised therein. See, e.g., Reese v. Duncan,
. A particular exchange of arguments regarding notice bears further examination. In response to the first motion, among other contentions, Arriba and Ryerson alleged a lack of proper notice of the filing seeking recognition of the foreign judgment. In the second and third motions, the Union asserted that. Arriba and Ryerson's receipt of a copy of the Mexican judgment—as an attachment to the first motion—mooted their claim to have not received proper notice of the Union’s domestication filing. The Union further argued that since Arriba and Ryerson had notice and did not object to the domestication, the foreign judgment became conclusive on all claims premised on the validity of the settlement agreement. In support of its interpretation of the statute’s notice provisions, the Union primarily cited cases from other jurisdictions. In response, Arriba and Ryer-son reasserted that notice was' insufficient and distinguished or attempted to distinguish the Union’s cases. They further argued that if attaching the Mexican judgment to the first motion for summary judgment provided sufficient notice of the domestication filing, then Arriba and Ryerson's responses to that motion should be construed as objections to recognition of the foreign judgment under chapter 36. In its briefing to this court, the Union does not address these arguments and possible bases for the trial court’s ruling. The Union also did not adequately do so in the trial court.
. Although the Union makes all of its arguments in terms of "no evidence,” it included language that essentially incorporated the same contentions in light of the factual sufficiency standards. We will therefore consider all of the union’s arguments with both standards in mind.
. Alvarez signed the Garnished Funds Agreement on behalf of the Union .as did Ryerson,
The Union suggests that because the Garnished Funds Agreement had spaces for two Union signatories, both Ryerson and Alvarez needed to have possessed actual (or apparent) authority in order to bind the Union to the agreement. The Union does not offer any legal argument for this suggestion but instead points out that Nelson, attorney for Arriba, wanted more than just Ryerson’s signature on behalf of the Union. The Union does not explain how Nelson’s preference meant that Ryerson’s signature alone would be insufficient to bind the Union.
. As one witness described them, the powers of attorney were "icing on the cake!’ and not strictly necessary to prove actual authority.
. In objecting to the Union’s offer of proof, a lawyer representing Ryerson pointed out that Arriba and Ryerson had designated their own experts on Mexican law whom they expected, if called, to disagree substantively with the Union’s experts. See Faircloth,
. Citing only'their expert's testimony in the offer of proof, the Unión states that the “S.C.” designation refers to a "civil society” under Mexican law, and that the entity was distinct from the Union itself. As stated above, the expert's testimony was not admitted at trial. However, testimony was admitted indicating that the Union sometimes used related entities, such as the Commission and Comater, to transact business.
. The Union further assails Alvarez’s purported power of attorney as not haying been signed by the principal as required by section 751.002 of the Texas Estates Code. As mentioned above, however, Exhibit 50-B was not Alvarez’s actual power of attorney, but a notarized statement confirming the existence of a power of attorney. Additionally, the Union does not cite where it made this argument below. Regardless, as stated, the validity of the powers of attorney was not an essential element of proof in this case.
,, Gonzalez further stated that no one could sign a Garnished Funds Agreement on behalf of the Union except the secretary general, but he offered no support for this assertion and several witnesses testified generally that it was not unusual for non-officers to sign such agreements on behalf of an entity. Gonzalez acknowledged that the engagement letter Burke signed directly with the Union noted Ryerson was still the principal attorney in the litigation, but according to Gonzalez, at that point, Ryerson had no real power on behalf of the Union. For his part, Ryerson explained his lack of activity in matters pertaining to Arriba subsequent to trial by pointing out that there was simply not much going on from 1998 until the funds were garnished in New York in 2002. Burke also stated that when Ryerson went in-house, Gonzalez over time became Burke's primary contact for the Union. Ryer-son was still involved but not as much.
. The Uhion additionally presented attorney George Munoz, who testified he began working for the- Union on Arriba matters in 2002. He described Ryerson as having actively represented the Union only from 1990 to 1999. He further opined that Ryerson should not have been working to settle the case. The jury was also free to reject Munoz’s testimony.
.Ryerson testified that LaQuina ‘‘did not have legal authority on behalf of the Union in 1989, yet the Union did whatever he said. It was an issue of power. ,.. [H]e was the absolute power, yes.” Nelson described La-Quina as “an extremely powerful, almost legendary figure in Mexico. [H]is ... endorsement of a presidential candidate had for years before resulted in a successful election campaign.” Nelson further explained that even without an official title, LaQuina had been "the center of everything in the case previously” and maintained ‘‘considerable influence,” and it would have been' irresponsible to ignore him.
LaQuina had been the Union’s secretary general, among other positions, and in other testimony it was represented that an individual could be secretary general for only two terms, which might explain why LaQuina left the position but retained substantial power. Indeed, Black recounted being summoned to meet with LaQuina at a Union convention in the 1980s when he was no longer secretary general, but Black said he was still “clearly the person in charge.”
The picture painted for the juiy. regarding the inner workings of the Union contained allegations from both sides of corruption, factionalism, and political intrigue. In light of this background, it would not have been unreasonable for the jury to conclude that La-Quina was still a powerful figure in the Union at the time the Garnished Funds Agreement was entered, and that he might be someone who could step in while the elected leaders were facing criminal investigation and charges.
. When pressed regarding who he spoke to at the president’s office, Ryerson only identified President-Fox’s son. Although Ryerson acknowledged the son had no official title within the government at the time, Ryerson said that the son was speaking "for the president.” Ryerson appeared to believe that the president's opinion carried some weight with the Union. There is certainly no evidence to the contrary. Interestingly, Nelson testified that Mexican entities appeared to shift to suit their purposes: one day, PemeXi the Union, and the government all appeared to be part of the same entity; then, on another day, they appeared to be totally separate.
. According to Ryerson, Choreno’s power of attorney was signed by the Union’s Minister of the Interior, whom Ryerson described as having the broadest possible powers within the Union.
. Because we affirm the trial court’s judgment based on the jury’s actual authority find
. At heart, the Union seems to be complaining that the settlement agreement was a “bad deal” for the Union, but the requirement of consideration is not a safeguard against improvident contracts and courts do not ordinarily inquire into the adequacy of consideration. Sudan v. Sudan,
.The Union’s focus on appeal has shifted from its focus in the trial court. Although the Union certainly requested an evidentiary hearing in the court below and argued that the powers of attorney were of Mexican origin, it specifically sought a determination that Mexican law controlled the question of whether Alvarez and Ryerson had authority to sign the Garnished Funds Agreement and the Ryerson Agreement. On appeal, the Union appears to only be insisting that Mexican law should have applied to .the validity of the alleged powers of attorney and not to the ultimate issue of authority to sign the two agreements. It is not clear from the record that the Union ever framed the issue for the trial judge in the limited manner it now does on appeal. In their trial court filings on the issue, Arriba and Ryerson appear to have interpreted the Union’s argument as seeking, at least in part, to have the jury instructed regarding Mexican law on authority. A party’s argument on appeal must comport with its complaint in the trial court. E.g., Garcia v. Alvarez,
. All told, the parties filed over 20 documents with the trial court on this issue.
. Specifically, the Union’s expert seems to have opined that Mexican law does not recognize a general power of attorney.
. Arriba strenuously objected to the offer on several grounds, including that one of the offer-of-proof experts' had not been designated as an expert witness. The Union did not dispute that assertion.
. In a hearing on July 11, 2013, reference was made to an earlier hearing on the motion to have Mexican law apply, but it is not stated whether any evidence was presented.at the earlier hearing. The record on appeal does not contain a transcript of the earlier hearing. The trial court also held a hearing on the Union’s motions to reconsider the application of Mexican law, but no evidence was offered or received during that hearing other than what was attached to the motions.
. In the trial court, counsel for the Union referenced our opinion in Ahumada v. Dow Chemical Co.,
. When asked directly during oral argument for legal authority supporting its position that the experts should have been allowed to testify before the jury, the Union's counsel did not provide any such authority.
. The trial court sustained several objections to statements referencing Mexican law.
. In order to present expert testimony on a mixed question of law and fact to the jury, the Union needed to have established that the issue was properly one for the jury and that its experts were correct on the law. The Union has offered no analysis—here or in 'the trial court—that its experts’s opinions on Mexican law were “fixed by law.” See Bruce,
. The Union frames the issue as Bowe-Dar-ville having verified Alvarez's authority to act on behalf of the Union. The record is not quite that clear regarding what Bówe-Darville' did. Gomez appeared to be speaking generally re-gárding what documents are presented to him before he signs agreements. During his testimony, Nelson was also asked briefly about Bowe-Darville’s role. He rejected the idea that she performed due diligence to verify ■ authority, saying instead that she merely "made sure they [Alvarez and Ryerson] were who they said they were when they arrived.” Whereas Gomez spoke ambiguously on the matter, Nelson’s testimony was direct.
. It is worth noting that evidence concerning both documents Gomez mentioned as possible proof of identity—Alvarez's passport and power of attorney—were made available to the Union in this case. Alvarez’s passport number appears listed on defendant’s exhibit 50-B, which was the document evidencing Alvarez's power of attorney attached to the Garnished Funds Agreement.
. In rejecting the application of In re Houston to this case, the Union notes that Arriba’s attorney mentioned Alvarez’s passport in closing argument. As noted, however, Alvarez’s passport number appeared on exhibit 50-B, which was properly disclosed. Moreover, the Union cites no authority suggesting reversible error occurred when Arriba’s counsel mentioned testimony elicited by the Union.
. The Union further complains that the trial court prevented its attorney from confronting Gomez with the fact that Bowe-Darville’s documents had not been produced; however, all the trial court did when Gomez was asked about document production was sustain an objection that the line of questioning violated the motion in limine. The Union’s attorney did not then ask to discuss the matter outside the jury’s presence or otherwise pursue the matter. See generally In re R.F., No. 09-10-00220-CV,
.Contalba apparently worked’ as a legal assistant for Ryerson and was deceased by the time of trial.
. The Union filed a written motion for mistrial and asked for relief at the end of the trial day, after Arriba rested and the jury was excused.
.- - Section 63.001 provides that:'
A writ of garnishment is available if:
(1) an original attachment has been issued;
(2) a plaintiff sues for a debt and makes an affidavit stating that:
(A) the debt is just, due, and unpaid;
(B) within the plaintiffs knowledge, the defendant does not possess property in Texas subject to execution sufficient to satisfy the debt; and
(C) the garnishment is not sought to injure the defendant or the garnishee; or
(3)a plaintiff has a valid, subsisting judgment and makes an affidavit stating that, within the plaintiff’s knowledge, the defendant does not possess property in Texas subject to execution sufficient to satisfy the judgment.
Tex. Civ. Prac. & Rem. Code § 63.001.
. The Union- cites no other formal or informal relationship between it and Ryerson that would give rise to a fiduciary duty.
. Arriba does not expressly challenge the legal sufficiency of the evidence to support the judgment; it merely asserts the trial court erroneously interpreted the Garnished Funds Agreement. As will be discussed in detail below, even if Arriba’s interpretation of the agreement is correct, that does not mean it is entitled to damages absent proof of breach, causation, and injury. See generally West,
. In describing what was to be distributed pursuant to its terms, the Garnished Funds Agreement expressly references funds attached to a specific bank account number and under the writs of garnishment.
. In its live pleading, Arriba alleged thát in the Garnished Funds Agreement, the Union agreed that 52 percent "of the account” was to go to Arriba and did not allege any general obligation for the Union to pay Arriba money.
. Arriba cites City of Seymour:
A contract or promise to pay may be restricted to a particular fund, so as to make the raising or the sufficiency of the fund a condition precedent to the liability, and in such case the promise cannot be enforced until the fund is realized, unless the failure to realize or collect the fund from which payment is made is due to the neglect, or to the unreasonable refusal to act, of the promi-sor, or is otherwise attributable to him.
. The agreement provided that "... the parties further agree to take whatever steps necessary to assure prompt presentation of this Agreed Order to the [trial] judge. ...”
. We further note that Arriba does not point to any evidence establishing that the garnished funds rightfully belonged to the Union. Union attorney Munoz testified that the Mexi- ' can government claimed that the garnished funds belonged to Pemex (the state-owned petroleum company) and had been misappropriated, Indeed, this appears to be the basis for the original restraining order on the funds obtained by the United States government on behalf of the Mexican government. If the funds belonged to Pemex (or otherwise to the Mexican government) and not the Union, then article III of the Garnished Funds Agreement amounted to no more than an agreement to divide a third-party’s money—a possibility recognized within article III itself when it mentioned other possible claims to the funds. Clearly, if the money rightfully belongs to a third party, then neither Arriba nor the Union would be entitled to a percentage of the money-regardless of any alleged breach of the agreement. Phrased alternatively, if the funds belonged to a third-party, Arriba presents no basis for recovery from the Union. The record before its appears to reveal nothing about what happened to the money after it was released to the Mexican government.
. As with Arriba, Ryerson does not raise any arguments or request any relief that would necessitate a remand to the trial court.