Merrill Investments Ltd. & Jutta Oberoi v. Coastal Corp.

• Court: Court of Appeals of Texas
• Decided: November 14, 2002
• Docket: 01-02-00018-CV
• Status: Published

Opinion

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-02-00018-CV

MERRILL INVESTMENTS, LTD. and

JUTTA OBEROI, Appellants

V.

THE COASTAL CORPORATION,

COSCOL PETROLEUM CORPORATION, and

COASTAL SECURITIES COMPANY LIMITED, Appellees

On Appeal from the 215th District Court

Harris County, Texas

Trial Court Cause No. 1999-57272

O P I N I O N

Merrill Investments, Ltd. ⁽¹⁾ and Jutta Oberoi, appellants, brought an action against the Coastal Corporation, Coscol Petroleum Corporation, and Coastal Securities Company, Ltd. (collectively, Coastal) for breach of contract and a related equitable claim for accounting. We are asked to decide if the trial court erred in granting Coastal's motion for summary judgment on the issue of limitations. We affirm.

Facts

In either 1980 or 1981, Jutta Oberoi and Duke Walia formed Oberoi Walia and Associates, a consulting partnership designed to facilitate oil transactions between foreign corporations and the Indian Oil Corporation (IOC). At that time, the IOC, a government-owned oil company, was the only entity in India that could buy or sell petroleum products. As consultants, Oberoi Walia and Associates sought to provide foreign corporations with information regarding IOC operations and business affairs. In March 1982, Oberoi and Walia formed Merrill Investments, Ltd., a Bahamian company established to collect commissions owed to Oberoi Walia and Associates. From 1982 through 1993, Oberoi and Walia each owned 47.5% of Merrill. Merrill's business affairs were handled by Chemical Bank, where Oberoi and Walia served as joint signatories.

In April 1982, Oberoi Walia and Associates entered into a written contract with Coastal, in which Oberoi and Walia agreed to serve as Coastal's agents in India. Under the contract, Oberoi and Walia were to arrange meetings between Coastal and the IOC, advise Coastal on IOC business practices, and facilitate negotiations and transactions with the IOC. In exchange, Coastal agreed to pay a commission on each metric ton of oil and petroleum products bought and sold between Coastal and the IOC. All commission payments were made to Merrill and then distributed to Oberoi and Walia. Coastal was Merrill's only client, and all commissions received by Merrill were paid by Coastal.

From 1982 to 1985, the IOC and Coastal conducted numerous oil transactions for which Merrill was paid a commission. During this time, these commissions were distributed to Oberoi and Walia in accordance with their contract. Oberoi authorized and approved all distributions.

In 1985, Oberoi froze funds at Chemical Bank due to a disagreement with Walia. Oberoi and Walia settled their dispute pursuant to another contract drafted in July 1985. Under this contract, Walia assumed complete control of Merrill, whereby he would direct all of Merrill's management and operations. Oberoi would continue to receive commission payments; however, these payments would not be distributed from Merrill, but instead would be paid directly from Coastal to Oberoi's private bank account. Thereafter, Coastal made two or three direct commission payments to Oberoi, the last of which occurred in January 1986.

In 1993, Oberoi received documents that led her to believe that Walia was hiding money from her while mismanaging Merrill. Oberoi showed these documents to Sam Willson, a senior vice president of Coastal. Willson then contacted Walia and told him about the documents. After speaking with Willson, Walia admitted to Oberoi that he had mismanaged Merrill's accounts and offered to settle the dispute. On April 13, 1993, Oberoi and Walia signed a settlement agreement that provided for (1) payment of $1.125 million to Oberoi over a 10-year period, (2) the transfer of 100% ownership of Merrill to Oberoi, and (3) a promise by Walia to provide Oberoi all of Merrill's books and records. This settlement released Walia from any future liabilities relating to his management of Merrill.

Unbeknownst to Oberoi at the time of the 1993 settlement, Walia had accepted a position at Coastal in 1991 as senior vice president of far east production. Before the 1993 settlement, Walia sought advice from Willson, who advised Walia to "sort this thing out" and avoid getting Coastal involved in a "dirty dispute." In addition, Coastal agreed to pay the $1.125 million settlement owed to Oberoi.

In 1995, Oberoi had yet to receive Merrill's book and records pursuant to the 1993 settlement agreement. Thus, Oberoi's attorney sent a letter to Walia requesting that he provide the books and records. In response, Walia sent Oberoi two invoices from 1983, but never provided her with any books or records concerning commissions received by Merrill from 1985 to 1993.

As a result, Oberoi asked Willson to provide copies of Merrill's invoices to Coastal, and Willson promised he would look for them. Willson never provided any invoices to Oberoi, however, and later informed her that the invoices were probably lost. When Willson failed to provide any invoices, Oberoi wrote a letter to Coastal requesting the invoices, and Coastal responded that the invoices were not available. Because Coastal gave various excuses explaining why the invoices were unavailable, Oberoi began to suspect that Coastal was deliberately hiding records that would reveal commissions owed and unpaid to her and filed suit against Coastal on November 17, 1999. After filing suit, Oberoi learned of Walia's position with Coastal and Coastal's involvement in the 1993 settlement.

Standard of Review

In one general point of error, Oberoi claims the trial court erred by rendering summary judgment in favor of Coastal because Coastal's breach of contract claim was barred by the four-year statute of limitations. ⁽²⁾ Summary judgment is proper only when the movant establishes there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). In conducting our review, we take as true all evidence favorable to the nonmovant and make all reasonable inferences in the nonmovant's favor. See KPMG Peat Marwick v. HCH, 988 S.W.2d 746, 748 (Tex. 1999).

Statute of Limitations

A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense. KPMG Peat Marwick, 988 S.W.2d at 748. Thus, Coastal had to (1) conclusively prove when the cause of action accrued and (2) negate the discovery rule, if it applies, by proving as a matter of law that there is no genuine issue of material fact about when Oberoi discovered, or in the exercise of reasonable diligence should have discovered, the nature of her injury. See id.

A cause of action generally accrues when a wrongful act causes some legal injury, even when the fact of injury is not discovered until later, and even if all of the resulting damages have not yet occurred. S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). The general rule is applied with the exception of the discovery rule, which operates to defer accrual and toll statutes of limitations. See Mellon Service Co. v. Touche Ross & Co., 17 S.W.3d 432, 435-36 (Tex. App.--Houston [1st District] 2000, no pet.). The discovery rule is applied in two types of cases: (1) when a defendant has fraudulently concealed a plaintiff's injury; and (2) where the nature of the injury is inherently undiscoverable, but may be objectively verified. Id. at 436. When a cause of action is deferred by the discovery rule, the cause of action does not accrue until the plaintiff knew or should have known of the wrongful act and resulting injury. Id.

Because Oberoi filed suit against Coastal on November 17, 1999, the accrual date for her cause of action can be no earlier than November 17, 1995, or the claim will be barred. Oberoi, however, seeks commission payments from Coastal for oil transactions that occurred sometime between 1985 and 1993, at least two years before November 17, 1995. These claims are barred by limitations unless the discovery rule applies.

Oberoi invokes both facets of the discovery rule to assert that the accrual date for her cause of action should be deferred until 1998 or 1999, the date she began to suspect Coastal's misconduct. Oberoi claims that (1) Coastal fraudulently concealed its oil transactions with the IOC in an effort to avoid paying commissions to her and (2) Oberoi's injury was inherently unidentifiable when it occurred, but can be objectively verified. If either claim is satisfied, the accrual date for Oberoi's cause of action may be deferred only until Oberoi knew or should have known of her injury. Once Oberoi knew or should have known of her injury, the cause of action accrued and limitations began to run. See id. Accrual of Merrill's Breach of Contract Claim When the discovery rule is applied, the cause of action accrues when the fact of injury is known, not when the responsible parties are known. See Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex. 1998); Mellon Service Co., 17 S.W.3d at 436. A party seeking to defer accrual and toll limitations must exercise reasonable diligence to learn of its cause of action. See Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983). We may determine commencement of limitations as a matter of law if reasonable minds could not differ about the conclusion to be drawn from the facts in the record. See Childs, 974 S.W.2d at 44. If Coastal has shown that Oberoi either knew or should have known of her injury before November 17, 1995, then Oberoi's claim is barred by limitations, irrespective of when she discovered all responsible parties. See id.

Oberoi seeks commissions owed and unpaid to her pursuant to the 1982 and 1985 contract agreements between Oberoi Walia and Associates and Coastal. Assuming, arguendo, that the discovery rule applies in this case, the rule cannot operate to defer accrual of Oberoi's claim beyond 1993. The summary judgment record reveals that, on two separate occasions, Oberoi knew or should have known of her injury.

The first occasion occurred in 1990 or 1991. During this time, Oberoi participated in actual business meetings being conducted between Coastal and the IOC in which Walia was present. Oberoi heard rumors that Walia was conducting business during this time frame. When asked if she thought oil transactions were being conducted, Oberoi responded, "90 percent yes, there was." Because Oberoi was 90 percent sure that oil transactions were being conducted, she should have been 90 percent sure that commissions were owed to her. Yet, Oberoi did not seek any commissions from Coastal.

The second occasion occurred in 1993, when Oberoi settled with Walia for the same injury that she now claims against Coastal: the withholding of commissions resulting in breach of contract. Oberoi knew that Walia was mismanaging money resulting in financial loss to Oberoi. However, Oberoi sought and received redress only from Walia, in spite of knowledge that commissions handled by Walia were necessarily paid by Coastal, who was at all times Merrill's only client. Oberoi knew that, if Walia was being paid commissions, she was owed commissions as well. Yet, again, Oberoi did not seek any commissions from Coastal.

This evidence shows that Oberoi either knew or should have known of her injury before November 17, 1995. Although Oberoi testified that it wasn't until 1998 or 1999 before she realized Coastal's misconduct, the cause of action accrues when the fact of injury is known, not when the responsible parties are known. See Childs, 974 S.W.2d at 40; Mellon Service Co., 17 S.W.3d at 436. At best, Oberoi has shown that she did not discover Coastal's participation in her breach of contract claim until 1998 or 1999. For purposes of accrual, however, our inquiry turns only on Oberoi's knowledge of her injury. See id. In light of the evidence, Oberoi's injury should have become apparent no later than 1993. Thus, her claim is barred by limitations.

Conclusion

Coastal met its burden on summary judgment by presenting sufficient evidence to conclusively prove that Oberoi knew or should have known of her injury before November 17, 1995. See Childs, 974 S.W.2d at 44. We hold the trial court did not err in granting Coastal's motion for summary judgment on the issue of limitations.

We overrule appellant's point of error.

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Justices Taft, Alcala, and Price. ⁽³⁾

Do not publish. Tex. R. App. P. 47.4.

1. Merrill Investments Ltd. is now solely controlled, managed, and owned by Oberoi and thus serves as her alter-ego in this suit.

2.

See Tex. Civ. Prac. & Rem. Code § 16.004(a)(3) (Vernon Supp. 2002) (statute of limitations for contract claims is four years). Both Oberoi and Coastal concede section 16.004(a)(3) applies in this case.

3. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.