Opinion
No. 05-19-00384-CV
02-20-2020
OPTIO SOLUTIONS, LLC, A DELAWARE LIMITED LIABILITY COMPANY D/B/A QUALIA COLLECTION SERVICES, Appellant v. YING PENG, Appellee
On Appeal from the 101st Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-17-03549
MEMORANDUM OPINION
Before Justices Myers, Whitehill, and Pedersen, III
Opinion by Justice Myers
Optio Solutions, LLC, appeals the take-nothing judgment the trial court rendered on Optio's suit against Ying Peng. Optio brings three issues on appeal contending (1) the trial court erred by denying Optio's motion for default judgment; (2) the evidence at trial did not support the trial court's judgment; and (3) the trial court erred by denying Optio's motion for new trial. We affirm the trial court's judgment.
BACKGROUND
Ying Peng suffers from bipolar disorder. On February 22, 2016, during a period of her mental illness, Peng went to a BMW dealership and purchased a new BMW X5. As a down payment, she gave the dealership a check for $25,000. However, there was no money in the bank account. Optio alleged Peng's bank refused to honor the check. Optio also alleged it was the holder of the check. Optio sued Peng for failing to pay the check.
Peng did not timely file an answer. Optio filed a motion for default judgment. Peng then filed a letter from the Collin County Mental Health and Mental Retardation Center dated August 31, 2016, stating she had a manic episode that spring. The record does not show that the trial court ruled on the motion for default judgment.
The parties tried the case before the court. Six months later, the trial court rendered judgment that Optio take nothing on its suit against Peng.
PRESERVATION OF ERROR
In its first issue, Optio contends the trial court erred by denying its motion for default judgment.
Generally, before an appellant may present a complaint for appellate review, the record must show the appellant presented the complaint to the trial court by a timely request, objection, or motion and that the trial court ruled on the request, objection, or motion, either expressly or impliedly, or that the trial court refused to rule and the appellant objected to the court's refusal. TEX. R. APP. P. 33.1(a). These requirements apply to motions for default judgment. See Echendu v. Huerta, No. 05-15-01351-CV, 2017 WL 1908622, at *2 (Tex. App.—Dallas May 9, 2017, no pet.) (mem. op.) (complaint that trial court denied motion for default judgment not preserved when record did not show trial court ruled on motion).
The record shows Optio filed its motion for default judgment on May 24, 2017, requesting that the court sign a default judgment in its favor against Peng. However, nothing in the record shows the trial court ruled on the motion.
Optio states in its brief that the trial court treated the letter Peng filed from the Collin County Mental Health and Mental Retardation Center as an answer. Nothing in the record supports this statement. The trial court's docket sheet contained in the clerk's record indicates there was a hearing scheduled on the motion for default judgment, but there is no reporter's record from the hearing. The record does not show that the trial court ruled on the motion. Nor does the record show the trial court refused to rule and that Optio objected to the trial court's refusal to rule. See TEX. R. APP. P. 33.1(a)(2)(B); Echendu, 2017 WL 1908622, at *2.
We conclude Optio's complaint that the trial court erred by denying Optio's motion for default judgment is not preserved for appellate review. We overrule Optio's first issue.
SUFFICIENCY OF THE EVIDENCE
In its second issue, Optio challenges the legal and factual sufficiency of the evidence to support the trial court's judgment.
Optio did not request that the trial make findings of fact and conclusions of law, and the trial court did not make findings of fact and conclusions of law. When no findings of fact and conclusions of law were requested or filed, it is implied that the trial court made all findings necessary to support its judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.—Dallas 2004, no pet.). The judgment will be upheld on any legal theory that finds support in the evidence. Niskar, 136 S.W.3d at 754.
We review the implied findings of fact for legal and factual sufficiency, and we review the trial court's implied legal conclusions de novo. In re M.P.B., 257 S.W.3d 804, 808 (Tex. App.—Dallas 2008, no pet.). When a party challenges the legal sufficiency of the evidence supporting an adverse finding on an issue on which the party had the burden of proof, it must show that the evidence establishes as a matter of law all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). When addressing a legal sufficiency challenge, we view the evidence in the light most favorable to the challenged finding, crediting favorable evidence if a reasonable fact-finder could and disregarding contrary evidence unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Anything more than a scintilla of evidence is legally sufficient to support the finding. Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998).
A party attacking the factual sufficiency of the evidence of an adverse finding on which the party had the burden of proof must demonstrate on appeal that the finding is against the great weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at 242. In a factual sufficiency review, we view all the evidence in a neutral light and set aside the finding only if the finding is so contrary to the overwhelming weight of the evidence that the finding is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); Morris v. Wells Fargo Bank, N.A., 334 S.W.3d 838, 842 (Tex. App.—Dallas 2011, no pet.).
To recover in this case, Optio had the burden to prove it was entitled to enforce the check and that the bank dishonored the check. See TEX. BUS. & COM. CODE ANN. § 3.414(b). To prove it was entitled to enforce the check, Optio had to prove it was a holder of the check or was otherwise entitled to enforce the check. Id. § 3.301.
Before trial, Optio filed with the district clerk a business records affidavit with the business records attached pursuant to Rule of Evidence 902(10). See TEX. R. EVID. 902(10). At trial, Optio offered and the trial court admitted into evidence as Plaintiff's Exhibit 1, which was Optio's letter to the Dallas County District Clerk stating that it was filing a business records affidavit. The business records affidavit and the attached records were not part of that exhibit. Optio proffered the affidavit and the records to the trial court as Plaintiff's Exhibits 2 and 3, and the trial court told Optio's counsel that the affidavit and the records should have been presented as one exhibit, not separate exhibits. The trial court and Optio's counsel then discussed the business records, with Optio's counsel explaining to the trial court why the records were relevant. However, the trial court never admitted the business records into evidence, and the court reporter did not include them in the reporter's record.
The trial court admitted into evidence as Plaintiff's Exhibit 4 Peng's check payable to "BMW of Dallas" for $25,000. The endorsement on the check states,
For Deposit OnlyPeng testified at trial that she wrote the check and that there was no money in the bank account.
Crosscheck - AutoNation
Assignee of Named Payee
FNBCT Waco, Waco, TX
The evidence admitted at trial does not show that the check was assigned to Optio or that Optio was otherwise entitled to enforce the check. In its brief on appeal, Optio cites to the business records affidavit and the records attached to it that were filed with the district clerk. However, exhibits that are tendered but not admitted into evidence are not part of the record of the trial and cannot be considered on appeal. See Nelson v. Neal, 787 S.W.2d 343, 346 (Tex. 1990). Business records filed with the clerk pursuant to Rule of Evidence 902(10) must be offered into evidence and admitted by the trial court to be considered on appeal. See In re A.G.F.W., No. 06-12-00111-CV, 2013 WL 2459886, at *3 (Tex. App.—Texarkana June 6, 2013, no pet.) (mem. op.). Because the trial court did not admit the business records affidavit and the attached records, we cannot consider them in determining whether Optio proved its entitlement to enforce the check. Without the business records, the evidence does not show that Optio was a holder of the check or that it was otherwise entitled to enforce the check.
We conclude Optio has failed to show that it proved its entitlement to recover on the check as a matter of law or that the trial court's judgment was against the great weight and preponderance of the evidence. We overrule Optio's second issue.
MOTION FOR NEW TRIAL
In its third issue, Optio contends the trial court erred by denying Optio's motion for new trial. We review a trial court's denial of a motion for new trial for abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009). Optio's argument under this issue is the same as its argument under the second issue—that it proved at trial its entitlement to recover against Peng on the check. As discussed above, the trial court could find from the evidence admitted at trial that Optio failed to prove its entitlement to enforce the check. We conclude Optio has not shown the trial court abused its discretion by denying the motion for new trial.
We overrule Optio's third issue.
CONCLUSION
We affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE 190384F.P05
JUDGMENT
On Appeal from the 101st Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-17-03549.
Opinion delivered by Justice Myers. Justices Whitehill and Pedersen, III participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee YING PENG recover her costs of this appeal from appellant OPTIO SOLUTIONS, LLC, A DELAWARE LIMITED LIABILITY COMPANY D/B/A QUALIA COLLECTION SERVICES. Judgment entered this 20th day of February, 2020.