Sunl Group, Inc. v. Yohg Kong Tomp Import and Exports Co, LTD

• Court: Court of Appeals of Texas
• Decided: January 29, 2013
• Docket: 05-11-01605-CV
• Status: Published

Opinion

AFFIRM; Opinion issued January 29, 2013.

In The nf Apprai niirt ift1! Thstrict nf ‘xai at ktlla6 No. 05-1 l-01605-CV

SUNL GROUP, INC., Appellant

V.

ZIIEJIANG YONGKANG TOP IMP. & EXP. CO., LTD., Appellee

On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-10-00210

OPINION Before Justices FitzGerald, Fillmore, and Evans Opinion By Justice Fillmore

Zhejiang Yongkang Top Imp. & Exp. Co., Ltd. (Yongkang) sued Sun! Group, Inc. and Ham

Trading Inc., asserting claims based on a sworn account and for unjust enrichment due to Sunl’s

failure to make payment in full for all-terrain vehicles (ATVs), go-carts, three-wheel motorcycles,

and mopeds sold by Yongkang to SunI. Following a bench trial, the trial court rendered judgment

against Suni for $1,828,740 in damages and $155,000 for attorney’s fees and a take-nothing

judgment in favor of Ham. In two issues, Sunl asserts the trial court erred by admitting into evidence

one of Yongkang’s trial exhibits and there is insufficient evidence that Yongkang performed under

the contract. We affirm the trial court’s judgment. Background

Erwa Lu testified that she was the owner anti sales manager of Yongkang, an import and

export company located in Zhejiang, China. According to Lu, David Shan, a representative ofSunl,

signed a number of contracts with Yongkang for the purchase of ATVs and go-carts. Lu testified

that Ham was Suni’s “receiver” and some of the ordered goods were delivered to Ham at Suni’s

direction.

Over Suni and Ham’s relevance objection, the trial court admitted into evidence Plaintiff’s

Exhibit A, consisting of eleven “sales contracts” and one “commercial invoice.” Each sales contract

contains a description ofthe goods. the quantity ordered, the unit price, and the total amount due for

the order. Each saLes contract lists Sunl as the buyer and contains an illegible signature of a SunI

representative. The first sales contract in the amount of$977A14 indicates the seller was Zhejiang

Kangdi Vehicles Co., Ltd. (Kangdi). The remaining sales contracts indicate the seller was

Yongkang. Thc commercial invoice also indicatcs the seller was Yongkang and reflects a shipment

of goods to Ham.

Lu testified that Yongkang did not manufacture the ordered equipment. Rather, Kangdi, as

well as other factories, manufactured the goods purchased by SunI. After David Shan signed a

contract on behalf of Sunl, Yongkang would request that a factory manufacture the goods.

Yongkang then delivered the goods to Suni or to a “receiver” specified by Sunl, such as Ham.

Lu created a chart showing Yongkang’s shipments of goods to SunI, which was admitted at

trial as PlaintifFs Exhibit B. The chart consists of columns containing (1) the contract number,

(2) the bill of lading number or numbers, (3) the date or dates the shipment was delivered, (4) the

“contract detail” consisting of the product type, quantity, unit price, and total amount, and (5) the

“payment detail” consisting of the payment terms, the amount paid, and the balance due. To the

—2-- ‘best ol 1 u’ s k nowledee, Suni, either directly or through a “receiver,” took possession of all the

merchandise shown on the chart. ihe chart does not reflect whether the goods were delivered

directly to Suni or to a “receiver.” Ehe chart shows an unpaid balance of $2,620,635.6. Lu

contacted David Shan about the unpaid balance. According to Lu, David Shan initially stated “we’ll

pay later,” hut “they” never paid.

May Shan testi lied that she is the owner and president o1 Suni. a company that distributes

ATVs, gocarts, and mopeds. According to May Shan, Sun! never imported goods directly from

Yongkang and never received shipments of goods directly from Yongkang. Rather, Sun! ordered

goods through I lain, received invoices from 11am, and paid 1-lam based on the invoices.

Occasionally, at Ham’s request, Sunl would “pay directly to China,” and Ham would credit the

payment. May Shan is married to Jian Xun Shan. also known as David Shan. However, according

to May Shan. the signatures on the various sales contracts do not look like l)avid Shan’s signature.

The trial court awarded Yongkang $1,828,740 in damages and $155,000 in attorney’s fees

against Suni. It ordered that Yongkang take nothing from I-lam. The trial court did not make

findings of fact or conclusions of’ law, and none were requested by any party.

Admissibility of Evidence

In its first issue, Sun! contends the trial court erred by admitting Plaintiff’s Exhibit A into

evidence. We review a challenge to the admissibility of evidence for an abuse of’ discretion.

Whirlpool Coip. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009). A trial court abuses its discretion

when it acts arbitrarily, unreasonably, or without regaid to any guiding rules and principles. Downer

v. Aquamarine Operators, inc., 701 S.W.2d 238, 241—42 (Tex. 1985).

The tnal courts damages asard appears to be based on the total amount oldatnages sought by Yongkattg minus the amount that was not collected on the sales contract bets’. een Kandgi and SunI.

‘l SunI argues the trial court erred by admitting Plaintiff’s Exhibit A into evidence over Sunl’s

relevancy objection. Suni asserts Plaintiff’s Exhibit A was not relevant because the first page ofthe

exhibit showed the seller ofvarious goods to be Kangdi, rather than Yongkang, and Kangdi was not

a party to the lawsuit. However, Plaintiff’s Exhibit A consists ofeleven separate sales contracts and

one commercial invoice. Only the first sales contract lists Kangdi as the seller. The remaining sales

contracts identify Yongkang as the seller and Sunl as the buyer. Although the first sales contract

between Kangdi and Stint might not be relevant to Yongkang’s claims against Sunl, the remaining

sales contracts were clearly relevant to Yongkang’s claims that SunI failed to pay for goods that it

had ordered from Yongkang See Tex. R. EvID. 401 (“Relevant evidence” means evidence having

any tendency to make the existence of any fact that is of consequence to the determination of the

action more or less probable than it would be without the evidence.); Serv. Lloyds Ins. Co. v. Martin,

855 S.W.2d 816, 822 (Tex. App.—-DalLas 1993, no writ) (“The relevancy test is satisfied if there is

some logical connection either directly or by inference between the fact offered and the fact to be

proved.”).

When an exhibit contains both admissible and inadmissible evidence, the party objecting to

the evidence has the burden to identify the portions of the exhibit that are objectionable. Austin v.

Weeins, 337 S.W.3d 415,423 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Gen. Motors Cap.

v. lImper. 61 S.W.3d 118, 126 (rex. App.—Eastland 2001, pet. denied) (citing Brown & Root i

Haddad, 142 Tex. 624,628, 180 S.W.2d 339, 341 (1944)). A general objection to evidence as a

whole, which does not point out specifically the portion objected to, is properly overruled ifany part

of that evidence is admissible. Speier v. Webster College, 616 S.W.2d 617,619 (‘rex. 1981); In re

K.L., No. 09-1 1-00083-CV. 2012 WI 1951111, at 6 (‘rex. App.—Beaumont Mar. 16,2012, pet.

filed) (mem, op.).

--4- Because portions ofPlaintiWs Exhibit A were relevant and admissible over Suni’s relevancy

objection, Suni was required to specifically object to the portions of the exhibit that were allegedly

inadmissible. Sec Havidad, 142 Tex. at 628, 180 S.W.2d at 341; Austin, 337 S.W.3d at 423.

Because Suni failed to do so, the trial court did not abuse its discretion by overruling SunI’s

objection to Plaintiff’s Exhibit A in its entirety. &e Speier, 616 S.W.2d at 619: In re Al., 2012 WL.

1951111, at 6. We resolve Suni’s first issue against it.

Sufficiency or the Evidence

In its second issue, SunI asserts the evidence is insufficient to support thejudgment because

Yongkang failed to establish it performed its obligations under the sales contracts. Suni specifically

argues that Yongkong failed to present customs verification, customs brokerage documents, bills of

ladin& or shipping documents to evidence delivery of the goods. Although Sunl has not stated

whether it is challenging the legal or the factual sufficiency of the evidence, we conclude the

evidence is sufficient to support the trial court’s judgment under either standard.

In a trial to the court in which no findings of fact or conclusions of law are filed, the trial

court’s judgment implies all findings of fact necessary to support it. Spir Star AG v. Kirnich, 310

S.W.3d 868,871—72 (rex. 2010). When a reporter’s record is filed, however, these implied findings

are not conclusive, and an appellant may challenge them by raising both legal and factual sufficiency

ofthe evidence issues. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46,52 (rex. 2003). When

such issues are raised, the applicable standard of review is the same as that to be applied in the

review of jury findings or a trial court’s findings of fact. Roberson v. Robinson, 768 S.W.2d 280,

281 (rex. 1989) (per curiam); Liberty Mist. Ins. Ca v. Bur?ç, 295 S.W.3d 771,777 (fex. App.—Fort

Worth 2009, no pet.). The judgment must be affirmed if it can be upheld on any legal theory that

finds support in the record. Rosemond v. Al—Lahiq, 331 S.W.3d 764,766 (Ta. 2011) (per curiam).

—5— An appellant attacking the legal sufficiency ofan adverse finding on an issue on which it did

not have the burden of proof must demonstrate there is no evidence to support the trial court’s

adverse finding. Croudier t Croucher. 660 S.W.2d 55,58 (Tex. 1983); 4 (fordable Power. L. P. v.

Buckeye Ventures, Inc., 347 S.W.3d 825, K30 (rex. App.—Dallas 2011, no pet). When examining

a legal sufficiency challenge to a finding offact, we review the evidence in the light most favorable

to the challenged finding and indulge every reasonable inference that would support it. City qfKeller

v. Wilson, 168 S.W.3d 802,822 (Ta. 2005). Evidence is legally sufficient if it rises to a level that

would enable a reasonable and fair-minded fact finder to make the finding. Id. at 827. A legal

sufficiency challenge fails ifthere is more than a scintilla ofevidence to support the finding. Kmger

Ta Ltd. P ‘rhlp v. Suberu, 216 S.W.3d 788,793 (Ta. 2006); Affordable Power; L.P., 347 S.W.3d

at 830. “Evidence does not exceed a scintilla if it is ‘so weak as to do no more than create a mere

surmise or suspicion’ that the fact exists.” Suberu, 216 S.W.3d at 793 (quoting Ford Motor Co. v.

Ridgway, 135 S.W.3d 598,601 (Ta. 2004)); see also Serv. Corp. int’l v. Guerra, 348 S.W.3d 221,

228 (rex. 2011) (if evidence does no more than give rise to mere surmise or suspicion, and is so

slight as to necessarily make any inibrence a guess, then it is no evidence).

In a factual sufficiency review ofa flndin& we consider and weigh all the evidence, both in

support of and contrary to the challenged finding. Oniz v. Jones, 917 S.W.2d 770,772 (rex. 1996)

(per curiam). When a party challenges the factual sufficiency ofthe evidence supporting an adverse

finding on which it did not have the burden of proof, we set aside the finding only ifit 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 (rex. 1986) (per curiam); Figueroa v. Davis, 318 S.W.3d 53, 59 (rex.

App.—Houston [1st Dist] 2010, no pet.). We may not substitute ourjudgment for that ofthe trier

of fact or pass on the credibility of the witnesses. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402,

-6- 407 (Tex. 1998).

Plaintiffs Exhibit B. the chart prepared by lu. shows a bill of lading number or numbers and

a delivery date or dates for goods sold in connection with each sales contract. Lu testified that

Yongkang delivered the goods according to the terms ofthe sales contracts and in conformance with

SunI’s instructions and that, to the best of her knowledge, Suni received all the goods. Although

May Shan denied that Suni received goods directly from Yongkang, she admitted Sunl received

goods from Ham. Lu testified Ham was Sunl’s “receiver.” Applying the appropriate standards of

review, we conclude them is legally and factually sufficient evidence to support the trial court’s

implied finding that Yongkang delivered the goods that were the subject ofthe sales contracts. We

resolve Stint’s second issue against it.

We affirm the trial court’s judgment

ROBERT M. FILLMORE JUSTICE

11 1605F.P05

2 sunl objected to the chart based en hearsay and relevancy. The thai court ovaruled the objections, and Sued has not challenged that ruling in this appeal

—7— tniirt nf piah *ft1i JTstrirt uf cxwi at JaLLui

JUDGMENT SUNL GROUP, INC., Appellant Appeal from the 193rd Judicial District Court oI Dallas County, Texas, (Tr.Ct.No. No. 05 1, 1 () I 605CV V DC I 0M02 10), Opinion delivered 1w Justice Fillmore, ZIIEJIANG YONGKANG TOP IMP. & Justices FitzGerald and Evans participating. LXP. Co.. LTD.. Appellee

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED. It is ORI)EREI) that appellee Zhejiang Yongkang Top Imp. & Exp. Co., Ltd. recover its costs of this appeal from appellant Suni Group, Inc.

Judginem entered January 89, 2013.

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