Opinion
No. 60053-2-I.
August 11, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 04-2-09960-7, Eric Z. Lucas, J., entered May 11, 2007.
Affirmed by unpublished per curiam opinion.
Luan Ngyuen entered and satisfied a purchase agreement for a restaurant. Thuy Tien Truong, his former girlfriend, sold the restaurant without his permission. He sued Thuy and her family for unjust enrichment and conversion. The trial court awarded restitution for the full purchase price of the restaurant. The Truongs appeal the monetary award, claiming that they provided the money used to purchase the business. We affirm.
Facts
Thuy Tien Truong and Luan Nguyen met over the internet, and became involved in a romantic relationship, which both assumed would lead to marriage. Luan's employment in Chicago terminated, and he moved to Washington State in May 2002. He eventually moved into Thuy's parent's home. In April 2003, Luan bought a home of his own. In August 2003, Thuy's father, Kien, learned of an Asian deli and gift shop for sale, and thought it could be purchased and turned into a restaurant. Soon after, Luan entered into an agreement to purchase the Eggroll Cuisine Oriental Gift Shop for $26,500. Only his name and signature appear on the purchase agreement. He also provided the $1,000 deposit to secure the contract. He, alone, incurred the obligation to pay the entire purchase price of the store. Evidence shows that the purchase price was satisfied through cash payments from both Luan and the Truongs. Luan also applied for a business license, listing himself as sole proprietor.
On September 15, $15,000 was transferred from Luan's bank account into Thuy's. Thuy then paid $15,000 toward the purchase price of the restaurant. Luan claims that he requested that Thuy get a cashier's check from his account to make this payment while he was in California without access to his bank account. Rather than securing a cashier's check from his account, Thuy transferred the funds into her account and then obtained the check. On September 17, $2,000 was transferred from Luan's account into Thuy's account, and she used the money for the restaurant lease. In addition, Thuy and Kien were both listed on the lease with Luan. Because the landlord found that both Luan and Thuy had inadequate credit histories, she required Kien as a signatory on the lease.
On September 23, Kien wrote a joint check to Thuy and Luan for $11,000. They used the funds to open a business bank account, on which Luan was the primary account holder and Thuy the secondary. This account was used to make the final $10,500 payment for the restaurant. In November, Thuy filed a new master business license application with a request to "please close proprietorship." She listed both herself and Luan as owners, but only Thuy signed the application. Luan alleges that she made this new application without his knowledge or approval.
During the remodel of the restaurant, prior to its opening, the romantic relationship between Thuy and Luan ended. After the restaurant opened, Thuy brought a male friend to visit. Luan became angry and the two allegedly had a physical confrontation. Thuy called the police, who arrested Luan for assault. Thuy obtained a restraining order that prevented Luan from working in the restaurant beginning December 17, 2003. A jury found Luan not guilty of fourth degree assault and the restraining order was eventually lifted.
During the period of the restraining order, Thuy operated the restaurant. The restaurant never became profitable. In April 2004, Thuy and Kien sold it for $25,000, which was less than the purchase price.
Soon after the sale, Luan filed a lawsuit against the Truongs alleging unjust enrichment and conversion. At trial, Luan claimed that he used money that he had saved from his job in Chicago and funds from his family in Vietnam to purchase the restaurant.
The Truongs contended that the funds used to purchase the restaurant were theirs. They claimed that they loaned Luan $36,300 toward the purchase of his home, and that all the electronic money transfers from Luan's account into Thuy's account were to repay the Truongs for that loan. They then used funds from the repayments to purchase the restaurant. Therefore, the Truongs claim to have paid $25,500 of the $26,500 purchase price of the business. According to the Truongs, they intended to purchase the restaurant as a partnership for Thuy and Luan. However, Luan entered the purchase agreement and obtained the business license without their knowledge.
To support this claim, the Truongs submitted a copy of Thuy's bank statement which shows a transfer of $36,300 to Luan's account on February 23, 2003. Thuy testified that they borrowed money from friends and family to make the loan. The Truongs provide no contemporary documentation of a loan. Similarly, the record shows many large cash transfers from Luan's account into Thuy's, and a check for $11,000 written from Kien to Luan and Thuy, jointly. None of these money transfers have contemporaneous documentation as loans, gifts, repayments, equity investment, or return on investments. The record includes only entries on bank statements or copies of checks.
Luan testified that he had not borrowed money from the Truongs. But, in a previous declaration, Luan admitted that Kien loaned him money to open his business. The admission included no information about the amount of the loan or terms. Luan said that the $36,300 from the Truongs was a money transfer, without strings attached, rather than a loan. A friend testified that the Truongs had given Luan a loan, but he did not know the reason for the loan or the terms of the agreement.
After a bench trial, the court found that Luan had given Kien money to invest in corporations in Florida, which Kien returned when Luan wanted to purchase the restaurant. The court was not persuaded by the Truongs' assertion of ownership over the funds, due to the lack of documentation or evidence of a loan. The court concluded that Luan intended to operate the business as a partnership, and that the Truongs improperly sold the restaurant without Luan's notice or consent. According to the trial court, the sale was a breach of loyalty and disclosure. The court awarded restitution in the amount of Luan's investment — calculated at the full purchase price of $26,500. The Truongs appeal many of the findings of fact that led to the court's calculation of Luan's investment. They believe that Luan should only receive the $1,000 he paid as the deposit on the restaurant, because the remaining $25,500 was paid from Luan's loan reimbursements.
Discussion
Truong appeals several findings of fact that support the trial court's monetary award to Nguyen. The appellate court reviews findings of fact for substantial evidence, "defined as a quantum of evidence sufficient to persuade a rational fair-minded person the premise is true." Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003). We will not substitute our judgment for that of the trial court, even if we might have resolved the factual dispute differently.Id. at 879-80. Credibility determinations are solely for the trier of fact and cannot be reviewed on appeal.Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 (2003). Unchallenged findings of fact are verities on appeal.Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002).
The record in this case is challenging. Clearly money changed hands frequently, but never accompanied by documentation of the nature or terms of the transfer. As a result, the trial court was faced with a case of "he said, she said." Luan says he used his own money and funds from Vietnam to pay for the business. Thuy says the purchase money belonged to the Truongs as repayment for a loan. Some evidence indicates that Thuy participated in the business. Thuy's name appears on the second business license (the one she applied for), on the business bank account, on receipts for the purchase of the store, and on the joint check from her father. But, Luan's name was the only one on the purchase agreement and the original business license. He denies that any of the Truong's money was used to purchase the business.
We must defer to the trial court on issues of credibility.Antonellis, 149 Wn.2d at 574. And, here, the trial court made an express credibility determination. That determination is clear and unequivocal. "The court finds Luan's testimony to be credible and Thuy's testimony on behalf of the Truongs not to be credible." Since credibility is the province of the finder of fact, we will not question this determination.
The credibility determination resolved several issues where the testimony of the parties is the only meaningful evidence. First, was the $36,300 transfer to Luan a loan? No. Credibility decided that issue in favor of Luan. Second, if the $36,300 was not a loan, then the transfers from Luan to Thuy's account were not repayment of that loan. Thus, when the transferred funds were used to pay $15,000 toward the purchase of the business, the funds were Luan's money not the Truongs'. Thirdly, Thuy asserted that the $11,000 was a loan, but the court believed Luan's testimony that the $11,000 check from Kien came through his money transfer business and originated with Luan's family in Vietnam. Resolving these issues in favor of Luan, the $26,500 is accounted for. Substantial evidence supports the trial court's findings that the $36,300 was not a loan, the $11,000 check from Kien constituted a money transfer from Vietnam, and that all the funds used for the business belonged to Luan.
Other challenged findings of fact are not supported by substantial evidence. The finding that the two cashier's checks from Luan to corporations in Florida were funds from Luan's family in Vietnam is not supported by Luan's testimony. The record shows that the funds were Luan's earnings from his job in Chicago. The trial court erred in this finding; however, this does not change Luan's ownership of the funds. Also, the finding that the cashier's checks were investment funds, later returned to Luan for purchase of the restaurant is not supported by the record. Luan testified that the cashier's checks were for investment in the future. He did not testify that Kien invested the money for him. He stated that the cashier's checks were for money wiring. Kien was in the money wiring business. There is no direct evidence that traces the funds from those cashier's checks back to Luan through Kien. The trial court appears to have misconstrued the source and purpose of these funds.
While these findings of fact are not based on substantial evidence, the result remains the same, errors are harmless. Neither finding affects the outcome of the issue of whether the $36,300 was a loan, or whether the transfers from Luan to Thuy were repayments of a loan. Neither finding affects the determination that the $11,000 check from Kien originated with Luan's family. Substantial evidence supports the findings that led to the $26,500 award to Luan.
Luan requests fees and costs on appeal because fees were awarded by the trial court and not appealed. He also contends fees are proper because the appeal is frivolous. Argument and citation to authority are required to advise us of the appropriate grounds for an award of attorney fees and costs.Bishop of Victoria Corp. Sole v. Corporate Bus. Park, L.L.C., 138 Wn. App. 443, 462, 158 P.3d 1183 (2007),review denied, 163 Wn.2d 1013 (2008). Because Luan fails to provide such authority, we decline to award fees.
We affirm.