Opinion filed April 16, 2015




                                      In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-13-00041-CV
                                   __________

              NOORDIN BHAMANI AND NOORUDDIN T.
                  “NICK” BHAMANI, Appellants
                                        V.
        CITIZENS ENTERPRISES, INC. AND MOHAMMAD
                    SIDDIQUE, Appellees


                      On Appeal from the 67th District Court
                               Tarrant County, Texas
                       Trial Court Cause No. 067-249329-10


                      MEMORANDUM OPINION
       This appeal arises out of a commercial lease dispute between Noordin
Bhamani (Bhamani) and his landlord, Citizens Enterprises, Inc. Citizens sued
Bhamani for breach of two commercial leases. The first one, signed in 2007, was
for the lease of a convenience store with an amendment for additional space: a
liquor store next to the convenience store. The second lease, signed in 2010, was
just for the liquor store.           Citizens pleaded for $54,235.68 in damages from
Bhamani for delinquent rent and other obligations owed by Bhamani. Bhamani,
joined by his brother and third-party plaintiff, Nooruddin T. “Nick” Bhamani,
counterclaimed and alleged usury, conversion, breach of contract, and other claims
against Citizens and Mohammad Siddique. After a bench trial, the trial court
entered judgment in favor of Citizens and awarded it $30,000 in damages and
$30,000 in attorney’s fees from Bhamani; the trial court also entered judgment that
the Bhamanis take nothing on their counterclaims.1 Bhamani asserts six issues on
appeal. We affirm.
                                         I. Evidence at Trial
        In 2006, Muhammad Yousuf Ahmed executed a lease in which he leased
from Citizens a convenience store in Hillsboro. Ahmed assigned that lease to
Bhamani, who operated the store; Ahmed never operated the store.                                Citizens
owned the convenience store and the real property, and Siddique was the sole
officer, director, and shareholder of Citizens. Bhamani testified that, when he
signed the agreement with Ahmed, he paid Citizens $165,000 in cash along with
two $5,000 cashier’s checks to purchase the goodwill of the convenience store
business.2 Siddique denied that he ever received a $165,000 cash payment and
asserted that he only received two $5,000 checks for payment on the first month’s
rent or a partial payment on store inventory.                    Later, Bhamani terminated his




        1
         The trial court, in its conclusions of law, concluded that “Third Party Plaintiff Nooruddin [Nick]
Bhamani has no standing to pursue claims against Citizens” as there was no legal relationship between
them. We note that, in this appeal, Noordin and Nick Bhamani have not challenged the trial court’s ruling
on standing, and that issue is not before us. Consequently, we refer to Bhamani as being the appellant (in
singular form) in the remainder of our opinion.
        2
         No documents reflect a sale of the goodwill of the convenience store business.

                                                    2
assignment, and Ahmed terminated the lease with Citizens; Bhamani then signed a
new lease with Citizens (2007 Lease).
       Siddique testified that, while the 2007 Lease was in effect, Bhamani
approached him with the idea to convert the unused car wash, which was next to
the convenience store, into Mojos Liquor; Bhamani wanted to remodel and occupy
that space. Bhamani repeatedly asked Siddique to allow construction of Mojos
Liquor. Siddique eventually agreed to do so. Bhamani testified that he never
signed a contract with anyone for the design or construction of Mojos Liquor and
that he had no involvement with its construction; he claimed that he was just a
tenant.
       Sepehr Parnian, a civil engineer, testified that Bhamani retained him for the
design of the exterior of Mojos Liquor, including obtaining the permits to complete
the construction.         Citizens then introduced a contract between Bhamani and
Parnian’s company for design and other work done related to the construction of
the liquor store and introduced a copy of a $5,000 check, signed by Bhamani, for
partial payment for those services.3 Once the car wash was converted into Mojos
Liquor, Bhamani entered into an amendment of the 2007 Lease to reflect the
addition of the liquor store.4
       Citizens asserted that it received $40,000 for partial payment for the
construction of the liquor store and Bhamani’s ownership of the liquor store
business; Bhamani did not own the premises. Bhamani testified that the $40,000
payment was for advanced rent. Nick Bhamani also claimed the $40,000 was part
of a $50,000 payment for advanced rent, but he later contradicted that claim when



       3
          The contract and check were admitted over Bhamani’s objection.
       4
         Citizens signed the amendment in 2008, and although Bhamani immediately occupied and
operated the liquor store after its construction, he did not sign the amendment until April 2009.

                                                   3
he said the payment was for ownership of the liquor store business.5 Citizens
denied that Bhamani had ever paid $50,000 for rent and, instead, asserted that he
had only paid $40,000 for the construction of the liquor store and ownership of the
business.
       In 2009, Bhamani struggled to timely make rent payments. Siddique sent
Bhamani invoices monthly that outlined the current and past-due rent, current and
accrued late fees, and other amounts owed. Siddique testified that Bhamani never
disputed the invoices, though Bhamani claimed otherwise and testified that he had
objected to some charges. Citizens sent Bhamani a demand letter in November
2009, demanding that Bhamani cure his default and make timely payments for
rent. Bhamani failed to do so and continued to have a past-due balance. Citizens
wanted the leases to continue, but only if Bhamani made timely rent payments. In
October 2010, Citizens sent Bhamani another letter to inform him that Citizens had
terminated the 2007 Lease and its amendment because Bhamani had failed to
timely pay rent. Citizens did not want to terminate the lease but did so because
Bhamani failed to meet his obligations. Citizens located a new tenant for the
convenience store, but Bhamani continued to occupy and operate the liquor store
with Citizens’s permission.
       Bhamani and the new tenant met to account for the convenience store’s
inventory. Siddique insisted that money from the sale of the inventory go into an
escrow account for payment of past-due rent and outstanding bills owed by
Bhamani. Litigation began in Hill County over the inventory sale; later, Citizens
and Bhamani signed a Rule 11 Agreement to create the escrow account and
distribute funds to pay for past-due rent and to pay other creditors of Bhamani. As

       5
        The amendment to the 2007 Lease indicates that, if Citizens sold the property, it would have to
execute a separate sales contract that included only the value of the liquor store business. Citizens
claimed this was because Bhamani paid for the liquor store business and, thus, would be owed the
proceeds from its sale, if such sale occurred.

                                                  4
part of the agreement, Citizens agreed to continue, on a month-to-month basis, to
lease Mojos Liquor to Bhamani.
      Citizens and Bhamani entered into another lease agreement, in December
2010 (2010 Lease), for a $3,000 per month rental rate. The 2010 Lease contained
a “Special Provision” whereby Bhamani agreed to pay the then outstanding
$42,250.84 worth of past-due rent still owed from the 2007 Lease and amendment.
Bhamani continued to occupy and operate Mojos Liquor for another year until
Citizens terminated the agreement in December 2011 because Bhamani failed to
pay rent. The final four checks Bhamani wrote for rent payments were returned for
insufficient funds.
      The trial court found that Bhamani breached the 2007 Lease and the lease
amendment by failing to pay rent, carry insurance, pay personal property taxes, pay
sales taxes, and pay the fuel supplier and that Citizens incurred damages. Further,
the trial court found that Citizens did not materially breach the 2007 Lease or the
lease amendment. Bhamani now appeals.
                                II. Issues Presented
      Bhamani asserts, in his first two issues, that Citizens is precluded from
recovery under the 2007 Lease because Citizens made demands for unauthorized
payments and materially breached that lease first and because the trial court failed
to find that Bhamani’s breaches caused injury, which precluded recovery for
breach of contract. Bhamani argues in his third issue that Citizens converted his
inventory. Bhamani next argues that the trial court erred when it (1) admitted
evidence not produced in discovery, (2) admitted testimony that contradicted
admissions in discovery, and (3) admitted documents that Bhamani did not
examine. In his final two issues, Bhamani argues that the trial court abused its
discretion in improperly questioning his witnesses and that Citizens’s excessive


                                         5
demand precluded any award of attorney’s fees and prejudgment interest to
Citizens.
                              III. Standards of Review
      The trial court’s findings of fact have the same weight as a jury’s verdict; we
review the legal and factual sufficiency of the evidence used to support them just
as we would review a jury’s findings. Catalina v. Blasdel, 881 S.W.2d 295, 297
(Tex. 1994). We apply the same standards that we use to review the legal and
factual sufficiency of the evidence supporting a jury’s answer to a jury question.
Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina, 881 S.W.2d at 297.
We review a trial court’s conclusions of law de novo. BMC Software Belgium,
N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). If we determine that a
conclusion of law is erroneous but that the trial court rendered the proper
judgment, the error does not require reversal. Id.
      When we conduct a legal sufficiency review, we review the evidence in a
light that supports the disputed finding and disregard all evidence and inferences to
the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). We “consider
all of the evidence in the light most favorable to the prevailing party, indulging
every reasonable inference in that party’s favor.” In re Estate of Rhea, 257 S.W.3d
787, 790 (Tex. App.—Fort Worth 2008, no pet.) (citing Associated Indem. Corp. v.
CAT Contracting, Inc., 964 S.W.2d 276, 285–86 (Tex. 1998)). If more than a
scintilla of evidence supports the challenged finding, the no-evidence challenge
must fail. See Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.
2003); Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 588 (Tex. 1999).
      For a factual sufficiency review, we examine all the evidence in the record,
both for and against the findings of the trial court. Ortiz, 917 S.W.2d at 772. We
must consider and weigh all evidence in a neutral light. Golden Eagle Archery,
Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). In a bench trial, the trial court
                                          6
is the sole judge of the witnesses’ credibility, and it may believe one witness over
another; a reviewing court may not impose its own opinion to the contrary.
Howeth Invs., Inc. v. City of Hedwig Vill., 259 S.W.3d 877, 894 (Tex. App.—
Houston [1st Dist.] 2008, pet. denied). If the evidence would enable reasonable
minds to differ in their conclusions and the evidence falls within a zone of
reasonable disagreement, we do not substitute our judgment. City of Keller v.
Wilson, 168 S.W.3d 802, 822 (Tex. 2005). When we consider and weigh the
evidence, we will set aside the judgment only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v.
Bain, 709 S.W.2d 175, 176 (Tex. 1986).
                           IV. Discussion and Analysis
      We interpret Bhamani’s first three issues as arguments that the evidence
legally and factually could not support the trial court’s findings (1) that Citizens
did not materially breach the leases, (2) that Bhamani breached the leases, and
(3) that Citizens did not convert Bhamani’s funds deposited in the escrow account.
We will address his first and second issues together followed by his third issue.
We will then address his remaining issues on evidentiary matters and excessive
demand doctrine.
      A. Issues One and Two: Bhamani’s Breach and Citizens’s Performance
      Bhamani asserts that there is legally and factually insufficient evidence to
support the trial court’s finding that he breached the leases. He also argues that
Citizens breached the leases first, as a matter of law, which excused his
performance.
            1. Elements Three and Four: Breach by Bhamani and Damages to
               Citizens
      Bhamani asserts that he did not materially breach the leases and that there
was insufficient evidence that his actions caused injury to Citizens to support an

                                         7
award of $30,000 in damages. “The elements of a breach of contract claim are (1)
the existence of a valid contract, (2) performance or tendered performance by the
plaintiff, (3) breach of the contract by the defendant, and (4) resulting damages to
the plaintiff.” Rice v. Metro. Life Ins. Co., 324 S.W.3d 660, 666 (Tex. App.—Fort
Worth 2010, no pet.) (quoting Fieldtech Avionics & Instruments, Inc. v.
Component Control.Com, Inc., 262 S.W.3d 813, 825 (Tex. App.—Fort Worth
2008, no pet.)) (internal quotation marks omitted). First, Bhamani does not dispute
the validity of the two leases. Second, Citizens provided the premises to Bhamani,
and Bhamani occupied both the convenience store and later the liquor store.
Therefore, the relevant questions are whether Bhamani materially breached the
leases when he failed to pay rent or make other payments and, if so, whether his
breaches caused damages to Citizens. As we explain below, the answer to both
questions is “yes.”
      “The materiality of a breach—the question of whether a party’s breach of a
contract will render the contract unenforceable—generally presents a dispute for
resolution by the trier of fact.” Henry v. Masson, 333 S.W.3d 825, 835 (Tex.
App.—Houston [1st Dist.] 2010, no pet.). The trial court found in its findings of
fact that Bhamani owed Citizens $30,000 for past-due rental amounts, for late
payment penalty charges, and for amounts paid by Citizens to Brilliant Energy
LLC for past-due electricity payments. Citizens provided a summary at trial that
indicated Bhamani owed $54,235.68; Siddique testified to that amount and said his
summary was accurate.
      Citizens’s invoices from 2009 and 2010 reflected outstanding past-due rent
balances owed by Bhamani. Citizens sent monthly invoices to Bhamani, which
outlined past-due rent, overdue taxes and insurance, late fees, and other expenses.
Citizens introduced invoices indicating that Bhamani owed money to Brilliant
Energy for store utilities and that Citizens had paid at least $5,684.73 for those
                                         8
bills. Bhamani was to pay $3,000 a month for rent for Mojos Liquor, and he wrote
checks for rent for that property. But four of those checks were returned for
insufficient funds. Bhamani also owed $41,265.98 to the fuel supplier, Victron
Energy. Bhamani owed more than $10,000 for overdue taxes on the stores. We
hold that this evidence was legally sufficient to prove Bhamani materially breached
the leases and caused damages to Citizens.
      Bhamani claims he was not given proper credit for payments he made. First,
he argues that he was not given credit for $40,000 in rent payments that he made.
Siddique testified that he received $40,000 for construction costs and for
Bhamani’s ownership of Mojos Liquor.          The amendment to the 2007 Lease
corroborates Siddique’s claim as to the $40,000 payment.          Second, Bhamani
claims he was not given credit for the inventory. A suit was filed by Bhamani
against Citizens in Hill County; that suit arose out of disputes concerning the two
stores. A Rule 11 agreement ended that litigation and provided for an escrow
account for the proceeds from the sale of the convenience store’s inventory;
Citizens leased the convenience store and sold its inventory to another lessee. The
inventory sale proceeds of $82,286.91 were placed into the escrow account.
Bhamani agreed that $20,000 was paid to Citizens for past-due rent; $20,000 was
sent to the Texas Comptroller to partially satisfy his tax obligations; and
$41,265.98 was paid to the fuel supplier, Victron Energy, for unpaid fuel charges.
      In the 2010 Lease, Bhamani even agreed to pay the outstanding $42,250.84
worth of past-due rent still owed from the prior lease. Citizens alleged breach of
contract with damages of $54,235.68 and adduced evidence of (1) past-due rent on
the 2007 Lease and amendment, (2) past-due rent on the 2010 Lease, (3) late fees
for past-due rent on both leases, (4) past-due electricity payments, and (5) past-due




                                         9
real property taxes,6 which totaled more than $30,000. We hold there was legally
and factually sufficient evidence that Bhamani breached the leases and that
Citizens incurred damages; the trial court did not err when it awarded $30,000 in
damages to Citizens.
               2. Elements One and Two: Valid Lease and Performance by Citizens
       Bhamani maintains he was excused from performance because Citizens
materially breached the leases before Bhamani did when Citizens failed to properly
credit payments for rent, refused to assign a fuel supply contract to him, attempted
to charge him too much for rent, charged improperly calculated ten percent late
fees, and improperly charged for property insurance—all of which failed to comply
with the terms of the leases. Contract law outlines “that when one party to a
contract commits a material breach of that contract, the other party is discharged or
excused from further performance.” Mustang Pipepline Co. v. Driver Pipeline
Co., 134 S.W.3d 195, 196 (Tex. 2004).
       There are five factors to review to determine if a failure to perform is
material: (1) whether the injured party fails to receive the benefit of the bargain;
(2) whether the injured party can be compensated for the benefit deprived;
(3) whether the injured party will suffer a forfeiture; (4) whether the party that
failed to perform can cure; and (5) whether the party that failed to perform acted in
good faith and fair dealing.           Id. at 199 (citing RESTATEMENT (SECOND)                 OF

CONTRACTS § 241 (1981)). Only a material breach by Citizens would excuse
Bhamani’s performance; this type of excuse is an affirmative defense, which
Bhamani had to plead and prove. See id. at 196–97; City of The Colony v. N. Tex.
Mun. Water Dist., 272 S.W.3d 699, 746 (Tex. App.—Fort Worth 2008, pet.
dism’d). When an appellant complains of the legal sufficiency of the evidence to
       6
         Bhamani, in accordance with the terms of the 2007 Lease and amendment, became responsible
for real property taxes in April 2010 and thereafter when Domino’s Pizza vacated the premises on
March 31, 2010.

                                               10
support an adverse finding on a matter on which he had the burden of proof, he
must show the evidence establishes, as a matter of law, all vital facts to support
every element of his defense. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241
(Tex. 2001).
      Bhamani argues that Citizens’s failure to properly credit rent payments of
$40,000 constituted a material breach of the leases. Siddique testified that the
$40,000 was for the construction and ownership of the Mojos Liquor business.
Although Bhamani claimed he paid $40,000 for advanced rent and his brother
claimed that $50,000 was paid for advanced rent, the factfinder could have
disbelieved them. As previously explained, the evidence was legally and factually
sufficient to support the finding of the trial court that Bhamani did not pay $40,000
to Citizens as future rent payments owing under the terms of the lease amendment.
      Bhamani claims that Citizens committed a material breach because a fuel
contract was never assigned to him.        Siddique testified that Bhamani never
disputed the failure to assign the fuel contract. Siddique said he would have
assigned the contract to Bhamani had the fuel supplier agreed, but there is no
evidence that the fuel supplier had agreed to the assignment. Nothing in the record
indicates that the failure to assign the fuel contract to Bhamani constituted a
material breach. Again, Bhamani failed to meet his burden to show a material
breach by Citizens.
      Bhamani also claims that he was charged too much rent because he had not
yet signed the lease amendment for the liquor store space. Citizens signed the
lease amendment in 2008; Bhamani immediately occupied and operated the liquor
store after its construction, but he did not sign the amendment until April 2009.
Citizens provided the additional space, and Bhamani occupied it.            Citizens
performed, sought payment for the increased rent for that space, and did not breach
the lease amendment.
                                         11
      Bhamani also argues that Citizens materially breached the leases when it
attempted to charge him for property insurance premiums and charged him late
fees that were not permitted under the 2007 Lease. Even if we assume these
claims by Bhamani evidenced material breaches by Citizens, which we do not
hold, once a party “materially breaches a contract, the nonbreaching party is forced
to elect between two courses of action, i.e., continuing performance or ceasing
performance.” Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11, 25 (Tex.
App.—Houston [14th Dist.] 2006, no pet.). A “party who elects to treat a contract
as continuing deprives himself of any excuse for ceasing performance on his own
part.” Long Trusts v. Griffin, 222 S.W.3d 412, 415 (Tex. 2006) (quoting Hanks v.
GAB Bus. Servs., Inc., 644 S.W.2d 707, 708 (Tex. 1982)).
      Bhamani, beginning in 2009, struggled to timely make rent payments and
had a past-due balance. Citizens’s invoices and Siddique’s testimony catalogued
the amounts Bhamani owed. Even though Bhamani asserts the invoices were
incorrect and had improper charges or fees included, he still remained in
possession of the leased premises; continued to sell fuel; and continued to miss rent
payments, tax payments, fuel supply payments, and utility payments. Siddique
testified that he thought the 2007 Lease allowed him to charge Bhamani the
insurance charges and late fees, as outlined in the invoices, but he conceded he
made errors. Siddique received payments from Bhamani sporadically, which made
it difficult to keep track of payments made and increased his work. Bhamani also
made random cash deposits into Citizens’s bank account, despite the requirement
that payments be made in full and delivered to a specific address on the first of
each month.
      Bhamani never presented any documents to show he had objected to the
charges or pointed out that the invoices were incorrect, and he never adduced
evidence that he had to pay the late fees or property insurance. Furthermore, he
                                         12
conceded that he owed rent, taxes, and fuel supply charges when he signed the
Rule 11 Agreement and that he owed more than $42,000 in rent when he signed
the 2010 Lease. More importantly, Bhamani continued to occupy and use the
premises and waived any claim for excuse of performance when he continued to
accept the benefits of the leases and continued to occupy both stores and operate
his businesses. Long Trusts, 222 S.W.3d at 415.
      We have reviewed the record and hold that the trial court did not err when it
found that Bhamani had breached the leases; there was legally and factually
sufficient evidence to show that he failed to pay rent, personal property and sales
taxes, utilities, personal property insurance, and fuel charges and that Citizens
incurred damages.    Bhamani also failed to establish, as a matter of law, his
affirmative defense of excuse of performance because, even if we assume Citizens
had materially breached the leases, which we do not hold, Bhamani continued to
occupy the premises and operate his businesses without timely paying rent and
other obligations. We overrule his first and second issues.
      B. Issue Three: Conversion
      Bhamani argues in his third issue that Citizens is liable for conversion for
the sale of Bhamani’s inventory in the convenience store. “Conversion is the
unauthorized and wrongful assumption and exercise of dominion and control over
the personal property of another to the exclusion of, or inconsistent with, the
owner’s rights.” Henson v. Reddin, 358 S.W.3d 428, 434 (Tex. App.—Fort Worth
2012, no pet.). As part of the resolution of litigation in Hill County, the parties
agreed to place the proceeds from the sale of the inventory in the convenience
store, totaling $82,286.91, into an escrow account to pay for part of the delinquent
rent and other obligations incurred by Bhamani from his operation of the stores.
When he signed the Rule 11 agreement, Bhamani explicitly authorized the funds to
be placed into an escrow account and distributed according to the agreement; thus,
                                         13
there is no “unauthorized and wrongful” control. Bhamani did not meet his burden
on his claim for conversion, and we overrule his third issue.
      C. Issue Four: Evidentiary Rulings
      Bhamani asserts that the trial court abused its discretion in three evidentiary
rulings. We review a trial court’s evidentiary rulings for an abuse of discretion.
Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527–28 (Tex. 2000). A trial
court abuses its discretion when it acts without reference to any guiding rules or
principles. Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). We must
decide whether the act was arbitrary or unreasonable. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). We must uphold the trial
court’s evidentiary ruling if there is any legitimate basis in the record for the
ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.
1998).
                1. Admission of Parnian Contract and Bhamani Check
      Bhamani complains that his contract with Parnian was inadmissible because
it was not produced in discovery. Bhamani and his brother both testified that they
had nothing to do with the construction of Mojos Liquor. Citizens called Parnian
to testify that Bhamani and his brother had hired Parnian to design the exterior of
the store and to get approval for its construction. Bhamani and Parnian entered
into a written contract. Bhamani also gave Parnian a $5,000 check for partial
payment for the project.7 The trial court admitted the contract and the check over
Bhamani’s objection.
      Rule 193.6 provides that a party may not introduce evidence it has not
provided in discovery unless there was good cause for the failure to timely
supplement or the failure to supplement will not unfairly surprise or prejudice the
other party. TEX. R. CIV. P. 193.6(a). The rule is intended to promote responsible
      7
         Neither Citizens nor Siddique was a party to the contract.

                                                    14
assessment of settlement and prevent trial by ambush. O’Dell v. Wright, 320
S.W.3d 505, 511 (Tex. App.—Fort Worth 2010, pet. denied). The party that seeks
to introduce the evidence carries the burden to establish good cause, lack of unfair
surprise, or lack of unfair prejudice. Id. Such a determination is within the
discretion of the trial court. Id. However, a finding of good cause, lack of unfair
surprise, or lack of unfair prejudice must be supported by the record. Id.
      Citizens, who received the contract and the check from Parnian, did not
timely supplement its discovery. But Citizens had requested Bhamani to produce
the contract in discovery, if one existed, and Bhamani did not produce the contract
or the check. Although Citizens failed to supplement discovery, it established
there was no unfair surprise or unfair prejudice to Bhamani. Bhamani put the
matter at issue when he denied he had contracted with Parnian, denied the
existence of the contract, and denied he had written the check.
             2. Admission of Evidence that Allegedly Contradicted Admissions
      Bhamani next claims that the trial court erred when it admitted evidence that
Bhamani claimed contradicted admissions by Citizens.          “An admission once
admitted . . . is a judicial admission, and a party may not then introduce testimony
to controvert it.” Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989). However, a
party relying on “judicial admissions of fact must protect the record by objecting to
the introduction of controverting evidence and to the submission of any issue
bearing on the facts admitted.” Id. Bhamani claimed that Citizens’s admissions
established what payments Citizens received from Bhamani and established that he
paid $40,000 to Citizens to construct Mojos Liquor. All trial exhibits were pre-
admitted by agreement of the parties. Bhamani had to object to the spreadsheets or
this testimony, when they were offered, if he thought they contradicted the
admissions. See id. Bhamani failed to preserve error and waived it. Id.; TEX. R.
APP. P. 33.1. But even if he had preserved error, Siddique said he thought his
                                         15
spreadsheets were accurate but admitted they may have had errors. Citizens’s
counsel asked this question, “Mr. Siddique, relating to the payments you received
from [Bhamani] for the construction of Mojos, number one, how much did you
receive?” Siddique responded, “40,000.” Siddique’s testimony was consistent
with Citizens’s prior admissions.
             3. Judicial Notice of Documents
      Bhamani argues, in his third evidentiary complaint, that the trial court erred
when it took judicial notice of documents produced in camera. These documents
are not part of the record, and no mention of them occurs in the findings of fact or
conclusions of law or in the judgment in this case. In order to preserve error, a
party must object on the record and get a ruling. TEX. R. APP. P. 33.1(a)(1).
Citizens asked the trial court to take judicial notice of records that the Texas
Alcoholic Beverage Commission sent to the trial court for in camera inspection.
Bhamani never objected and preserved nothing for review.                We overrule
Bhamani’s fourth issue.
      D. Issue Five: Trial Court’s Witness Questioning
      Bhamani asserts in his fifth issue that the trial court erred in questioning
witnesses in a “frequent, aggressive, and inappropriate” manner. A trial court’s
right to examine witnesses in a bench trial is well established. In re Estate of
Vigen, 970 S.W.2d 597, 600 (Tex. App.—Corpus Christi 1998, no pet.). Although
a trial judge should not act as an advocate, a judge may ask material questions of a
witness to elicit evidence not otherwise brought out. See Born v. Virginia City
Dance Hall & Saloon, 857 S.W.2d 951, 957 (Tex. App.—Houston [14th Dist.]
1993, writ denied). A trial judge may question witnesses “in order to clarify an
issue the trial judge must decide in fulfilling his fact-finding role.” In re R.P., 37
S.W.3d 76, 79 (Tex. App.—San Antonio 2000, no pet.). We review the trial
court’s questioning of a witness for an abuse of discretion. Moreno v. Reliable
                                         16
Insulation, Inc., 217 S.W.3d 769, 772 (Tex. App.—Dallas 2007, no pet.); Cason v.
Taylor, 51 S.W.3d 397, 405 (Tex. App.—Waco 2001, no pet.); see Born, 857
S.W.2d at 957. A party must object to a trial court’s questioning of witnesses or
else it waives the issue on appeal. Vigen, 970 S.W.2d at 600. Bhamani failed to
object to the trial judge’s questioning of witnesses and has waived the issue. See
id.; see also TEX. R. APP. P. 33.1. Even if Bhamani had preserved error, the trial
court did not abuse its discretion because its questioning was limited to
clarification of the issues that it had to decide as factfinder.       We overrule
Bhamani’s fifth issue.
      E. Issue Six: Excessive Demand Allegation
      Bhamani argues in his final issue that Citizens may not recover attorney’s
fees or prejudgment interest because its demands were excessive. A demand is
excessive if the claimant acts unreasonably or in bad faith. See Findlay v. Cave,
611 S.W.2d 57, 58 (Tex. 1981); Staff Indus., Inc. v. Hallmark Contracting, Inc.,
846 S.W.2d 542, 548 (Tex. App.—Corpus Christi 1993, no writ). The dispositive
inquiry on excessive demand is whether the claimant acted unreasonably or in bad
faith. Findlay, 611 S.W.2d at 58; Staff Indus., 846 S.W.2d at 548. Bhamani
asserts that Citizens “demanded payment of more than $169,000 but recovered
only $30,000.” Having searched the record, we find that Citizens’s pleadings
demanded $54,235.68; at trial, a spreadsheet was used by Citizens to outline how it
calculated its demanded payment. Bhamani’s reference to a demand “of more than
$169,000” comes from another spreadsheet introduced at trial, but there is no
evidence that Citizens demanded that amount prior to trial or during trial. The trial
court awarded $30,000 in damages, which was supported by legally and factually
sufficient evidence. Citizens’s demand for $54,235.68 with adduced evidence of
more than $30,000 in damages for (1) past-due rent for the 2007 Lease and
amendment, (2) past-due rent for the 2010 Lease, (3) late fees on both leases,
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(4) past-due electricity payments, and (5) past-due real property tax payments
demonstrates that the demand was not excessive, unreasonable, or made in bad
faith. We overrule Bhamani’s final issue.
                                   V. This Court’s Ruling
      We affirm the judgment of the trial court.




                                              MIKE WILLSON
                                              JUSTICE


April 16, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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