Tsung-Rian Chen, AKA Mark Chen v. Empower Investments, LLC, DBA Technology Recycling ( 2010 )

MEMORANDUM OPINION
No. 04-09-00816-CV
Tsung-Rian CHEN, a/k/a Mark Chen,
Appellant
v.
TECHNOLOGY RECYCLING,
Appellee
From the County Court at Law No 3, Bexar County, Texas
Trial Court No. 344758
Honorable David J. Rodriguez, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
Delivered and Filed: September 15, 2010
AFFIRMED
This is an appeal from a take-nothing judgment rendered in favor of the appellee
following a bench trial.
DISCUSSSION
Appellant, Tsung-Rian Chen, filed suit against appellee, Technology Recycling, for
breach of contract and to recover $15,119.02 that Chen alleged appellee owed to him. Following
a bench trial, the trial court rendered a take-nothing judgment against Chen. On appeal, Chen
04-09-00816-CV
alleges the trial court misunderstood the terms of the contract between the parties, the trial court
overlooked the fact that he never received any “terms and conditions” from appellee, the trial
court erred in finding that a container of goods was shipped from San Antonio to California
instead of to Hong Kong, the trial court overlooked appellee’s inconsistent statements regarding
a third container of goods, the trial court erred by adopting appellee’s claim that appellee remains
ready to load the remainder of unshipped goods if Chen provides the container, and the trial
court erred by ignoring appellee’s intention to hide invoices. We liberally construe Chen’s
assertions on appeal as a challenge to the factual sufficiency of the evidence in support of the
trial court’s implied finding that appellee did not breach the parties’ agreement and, therefore,
appellee did not owe Chen damages.
At trial, Chen testified he and appellee entered into an agreement for Chen to purchase
computer monitors and other computer scrap from appellee. The agreement was evidenced by
two invoices, one in the amount of $14,264.79 and the other in the amount of $14,970.00. There
is no dispute that Chen wired the full amount of $29,234.79 to appellee’s bank account. There is
also no dispute that two containers were loaded with goods and shipped to Chen’s customer in
Hong Kong. When the containers were loaded and shipped, new copies of the two invoices were
sent to Chen documenting the quantity and unit price of the goods shipped and noting the
shipment date. However, Chen testified that appellee failed to load the amount and type of
goods indicated on the copies of the first two invoices, and instead, loaded and shipped a
different quantity and type of goods to his customer. For example, instead of shipping the 302
CRT monitors shown on the first copy of the invoice, appellee shipped 473 CRT monitors, as
shown on the second copy of the invoice.
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Because of the different type and quantity of goods shipped, Chen alleged a balance was
owed to him of $15,748.02. In an effort to get the remaining balance back, Chen said he and
appellee entered into another agreement as evidenced by a third invoice. However, according to
Chen, the third container was not packed properly and some of the scrap metal fell off and the
freight forwarder refused to take the container. Chen denied he asked appellee to stop shipment
of the third container. Chen said appellee then charged him for labor and fuel associated with
loading the third container, leaving a balance of $15,119.02.
Appellee’s two company representatives explained the method under which their
business operates. Appellee advertises for sale monitors and other computer scrap. Every day
appellee acquires scrap and ships scrap; therefore, the amount and type of available commodity
can change daily. Potential buyers view the company’s website and contact appellee through its
website. When appellee receives a prospective buyer’s communication, it emails the buyer the
company’s terms and conditions along with a request for the buyer to list the prices the buyer
will offer for the different commodities appellee sells. At this time, appellee tells the buyer what
commodities it has on hand in its warehouse on that specific date by sending the buyer a pro
forma invoice similar to the first two invoices received by Chen. Often, as was the case here,
appellee asks for a deposit. The buyer is responsible for arranging for a container. When the
deposit is received and the container arrives at appellee’s warehouse, appellee loads the container
with the commodities available on that date. Buyers may watch the loading of their container via
the company’s website. A final version of the invoice, similar to the second two copies received
by Chen, is sent to the buyer listing the commodities shipped, the unit price, and the shipment
date.
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Appellee denied the freight forwarder cancelled the third container. Instead, according to
appellee, the container never left its dock because Chen’s wife cancelled the container. Appellee
stated its terms and conditions provide that the deposit is non-refundable, but appellee remains
willing to fulfill its obligation to Chen to ship commodities in the amount of the remaining
balance.
When, as here, the party who had the burden of proof at trial complains of the factual
insufficiency of the evidence, that party must demonstrate that the adverse finding is contrary to
the great weight and preponderance of the evidence. See Dow Chem. Co. v. Francis, 46 S.W.3d
237, 242 (Tex. 2001). We weigh all the evidence, and will set aside the adverse finding only if it
is so against the great weight and preponderance of the evidence that it is clearly wrong and
unjust. Id. In a bench trial, the trial court, as factfinder, is the sole judge of the credibility of the
witnesses. G. Prop. Mgmt., Ltd. v. Multivest Fin. Serv. of Texas, Inc., 219 S.W.3d 37, 50 (Tex.
App.—San Antonio 2006, no pet.). And, in a bench trial, the trial court has the right to accept or
reject any part or all of a witness’s testimony. Id. The court may believe one witness and
disbelieve others and may resolve inconsistencies in any witness’s testimony. Id. After
reviewing all the evidence, we conclude the evidence in support of the trial court’s judgment is
not so against the great weight and preponderance of the evidence that it is clearly wrong and
unjust.
CONCLUSION
Because the evidence is factually sufficient, we overrule Chen’s complaints on appeal
and affirm the trial court’s judgment.
Sandee Bryan Marion, Justice
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