=
For=20 The
SHAOGUANG HE,=20
Appellant WEN HONG =
JIANG,=20
Appellee
On =
Appeal from the=20
190th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2004-16944
MEMORANDUM=20
OPINION Appellant, Shaoguang He, =
appeals from a=20
judgment rendered upon a jury's award of damages for breach of =
contract=20
and fraud in favor of appellee, Wen Hong Jiang. In two issues, He =
argues=20
that (1) the statute of frauds bars Jiang's recovery and (2) the =
evidence=20
is legally insufficient to support the judgment. We reverse and =
render. Facts =
and Procedural=20
History He and Jiang first met each =
other in 2001=20
in Houston. Sometime thereafter, He and Jiang entered into an =
agreement.=20
According to He, Jiang =
approached him=20
about doing some investment work for her. He agreed, testifying =
that Jiang=20
had agreed to pay him $100,000 per year for his work. At the end =
of one=20
year, Jiang refused to pay He for his work because she had not yet =
made=20
any profits on her investments, but she agreed that she would pay =
him at=20
the end of the following year for two years' work. At the end of =
two=20
years, however, Jiang did not pay He for his work. According to Jiang's testimony, =
she and=20
He had entered into an agreement whereby He would borrow money =
from Jiang,=20
make interest payments at specified intervals, and ultimately =
return the=20
principal to Jiang. From December 2001 through July =
2002,=20
Jiang made seven payments to He pursuant to their alleged =
agreement=20
totaling $453,000. Of this, $200,000 was given to He directly; =
$100,000=20
was wired to a company named De Li Industries; and $153,000 was =
wired to=20
another company named Guanging Honda, of which He is a =
shareholder. Of the=20
$200,000 sent to He directly, the transfer of $150,000 is =
memorialized in=20
two writings signed by He and given to Jiang on June 21, =
2002: Agreement of=20
Cooperation I received $50,000.00 (fifty =
thousand=20
dollars) from Wenhong Jiang to purchase U.S. stocks. Stocks will =
be=20
purchased through mutual consultation. I will return premium along =
with=20
the interest to Wenhong Jiang when profits are =
realized. Participant: Shaoguang He =
(signature) 6/21/02 Agreement of=20
Cooperation I received $100,000.00 (one =
hundred=20
dollars) [sic] from Wenhong Jiang. (The first part of $33,400.00 =
was=20
received on 3/25/2002; the second part of $66,600.00 was received =
on=20
5/7/2002.) The term of the agreement is one year. I agree to pay =
the=20
interest of $6000.00 every 70 days and there will be five times =
for such=20
payments. Afterwards I will pay the interest by days. The date to =
start to=20
calculate interest is 3/25/2002. The first pay date for the =
interest is=20
7/16/2002. I agree to return premium along with interest after one =
year. By: Shaoguang He =
(signature) 6/21/02 Ten days after her last payment =
to He, He=20
executed another writing: Calculation=20
Methods Profits of =
$100,000.00: 360 days per year: Every 70 days, interest earned: =
$6,000.00 For one year (360 days), =
interest earned:=20
$6,000.00 x 1 + $857.00 =3D $6,857.00 Profit of the first=20
$33,400.00: 42 days x $33,400.00 x 0.000857 =
(profit=20
per day of $1.00) =3D $1,202.00 Profit due to Wenhong Jiang by =
7/16=20
is: $6,000.00 + $1,202.00 =3D=20
$7,202.00 Shaoguang He =
(signature) 7/15/02 (Note: based on the opinion of =
Wenhong=20
Jiang, the profit of $7,202.00 will be put into the toy business, =
starting=20
to calculate interest on $7,202.00 from 7/17. Starting to =
calculate=20
interest on $153,000.00 from 7/12). From January 2002 through =
January 2004,=20
He made twelve payments to Jiang totaling $220,510. When Jiang did =
not pay=20
He for the investment work he had done for her, He filed suit =
against=20
Jiang alleging breach of contract. In her second amended original =
answer,=20
Jiang alleged counterclaims for breach of contract and =
fraud. In considering the evidence, =
the jury was=20
required to answer several questions about the facts and answer =
"yes" or=20
"no." The jury found that He and Jiang had entered into an =
agreement but=20
that only He had failed to comply with that agreement and awarded =
to Jiang=20
$232,500 in damages. The jury also found that He had committed =
fraud=20
against Jiang and awarded an additional $41,900 in direct and=20
consequential damages. On November 30, 2005, He filed =
a motion=20
for judgment notwithstanding the verdict and a motion to disregard =
jury=20
findings arguing that "[a] directed verdict would have been proper =
in this=20
case, because there is no evidence to support any of the answers =
to the=20
jury questions. Accordingly, the jury's answers should be =
disregarded and=20
a take nothing judgment on the entire case should be entered." On =
December=20
19, 2005, the trial court denied He's motions, and, based on the =
jury's=20
findings, rendered (a) a take-nothing judgment against He and in =
favor of=20
Jiang on He's breach of contract claim and (b) a judgment in favor =
of=20
Jiang and against He on Jiang's breach of contract and fraud =
claims for=20
$274,400. On June 16, 2006, He filed a =
motion for a=20
new trial alleging that Jiang had presented no evidence to support =
her=20
causes of action against him. The record does not reflect whether =
the=20
court ruled on this motion. Consequently, it was overruled by =
operation of=20
law. See Tex. R. Civ. P. 329b(c).Legal =
Sufficiency=20
In his second issue, He contends that the evidence is =
legally=20
insufficient to support the trial court's judgment for breach of =
contract=20
and fraud. In conducting a legal sufficiency review, we consider =
all the=20
evidence in the light most favorable to the prevailing party.=20
Scottsdale Ins. Co. v. Nat'l Emergency Servs., Inc., 175 =
S.W.3d=20
284, 300 (Tex. App.--Houston [1st Dist.] 2004, pet. denied). We =
indulge=20
every reasonable inference in that party's favor and disregard all =
evidence and inferences to the contrary. Id. When, as =
here, the=20
complaining party challenges the legal sufficiency of the evidence =
underlying an adverse finding on which he did not have the burden =
of=20
proof, he must demonstrate that there is no evidence to support =
the=20
finding. Id. If more than a scintilla of evidence =
supports the=20
finding, the no-evidence challenge fails and the finding is =
legally=20
sufficient. Id. (citing Lee Lewis Constr., Inc. v.=20
Harrison, 70 S.W.3d 778, 782 (Tex. 2001)). Breach of=20
Contract He argues that the evidence =
supporting=20
the breach of contract portion of the judgment is insufficient =
because (1)=20
no verbal or written agreement existed in which He agreed to pay =
$232,500=20
to Jiang and (2) Jiang testified that she had lost the $232,500 =
because=20
she had met He, not because he had breached any =
agreement. The elements of a breach of =
contract=20
claim are that (1) a valid contract existed; (2) the plaintiff =
performed=20
or tendered performance; (3) the defendant breached the contract; =
and (4)=20
the plaintiff was damaged as a result of the breach. Hussong =
v.=20
Schwan's Sales Enters., Inc., 896 S.W.2d 320, 326 (Tex. =
App.--Houston=20
[1st Dist.] 1995, no writ). Whether a particular agreement =
constitutes a=20
valid contract is generally a question of law. Farah v. =
Mafrige &=20
Kormanik, P.C., 927 S.W.2d 663, 678 (Tex. App.--Houston [1st =
Dist]=20
1996, no writ). A valid contract is formed by an offer, an =
acceptance, a=20
meeting of the minds, each party's consent to the terms, and, in =
the case=20
of a written contract, execution and delivery of the contract with =
the=20
intent that it be mutual and binding. Baroid Equip., Inc. v. =
Odeco=20
Drilling, Inc., 184 S.W.3d 1, 17 (Tex. App.--Houston [1st =
Dist.]=20
2005, pet. denied). However, if an alleged agreement is so =
indefinite such=20
that it is impossible for a court to fix the legal obligations and =
liabilities of the parties, the agreement cannot constitute an =
enforceable=20
contract. Shaw v. Palmer, 197 S.W.3d 854, 856 (Tex. =
App.--Dallas=20
2006, pet. denied); accord Farah, 927 S.W.2d at =
678 ("A=20
contract is not legally binding unless it is definite enough in =
its terms=20
so a court can understand what the promisor undertook."). =
Jiang did not present =
sufficient evidence=20
from which the jury could have identified the terms of the alleged =
contract. At trial, Jiang testified that He proposed an agreement =
whereby=20
He would borrow money from Jiang, make interest payments at =
specified=20
intervals, and ultimately return the principal to Jiang. Thus, =
according=20
to her testimony, Jiang entered into a loan agreement with He. =
In a contract to loan money, =
the material=20
terms are generally (1) the amount to be loaned; (2) the =
maturity=20
date of the loan; (3) the interest rate; and (4) the terms of =
repayment.=20
Farah, 927 S.W.2d at 678. Here, we cannot ascertain the =
material=20
terms of the loan agreement between He and Jiang because no =
evidence was=20
presented at trial as to the amount to be loaned. Jiang did not =
present=20
any evidence regarding how much Jiang had agreed to loan to He. =
Rather,=20
two writings were presented showing that He, prior to the =
execution of=20
these two writings, had received $150,000 from Jiang. Jiang =
argues,=20
however, and the record reflects that Jiang sent to He and =
companies=20
selected by He a total of $453,000. Thus, we cannot ascertain the =
amount=20
Jiang agreed to loan to He. Because the amount to be loaned is =
material in=20
a loan agreement and it is impossible to ascertain Jiang's =
financial=20
obligation to He, the alleged agreement cannot constitute an =
enforceable=20
contract. See Shaw, 197 S.W.3d at 856 (noting that if =
alleged=20
agreement is so indefinite such that it is impossible for court to =
fix=20
legal obligations and liabilities of parties, agreement cannot =
constitute=20
enforceable contract); Farah, 927 S.W.2d at 678 (noting =
that=20
amount to be loaned is material term in contract to loan money).=20
Therefore, because Jiang did not establish the existence of an =
enforceable=20
contract, We sustain=20
the breach of contract portion of He's second issue. He contends=20
that the evidence supporting the fraud portion of the judgment is=20
insufficient because Jiang testified that she had lost the =
$232,500=20
because she had met He, not because he made any false =
representations to=20
her. To recover=20
on an action for fraud, the party must prove: (1) a material=20
representation was made; (2) it was false; (3) when the speaker =
made the=20
representation, he knew it was false or made it recklessly without =
any=20
knowledge of the truth and as a positive assertion; (4) the =
speaker made=20
it with the intention that it should be acted upon by the party; =
(5) the=20
party acted in reliance upon it; and (6) the party thereby =
suffered=20
injury. Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 =
(Tex.=20
1997). We reverse=20
and render a take-nothing judgment against Jiang and in favor of =
He with=20
respect to Jiang's counterclaims for breach of contract and=20
fraud.
Evelyn V.=20
Keyes Panel=20
consists of Justices Nuchia, Keyes, and Higley. 1. See Hussong v. Schwan's Sales =
Enters.,=20
Inc., 896 S.W.2d 320, 326 (Tex. App.--Houston [1st Dist.] =
1995, no=20
writ) (setting out elements of a breach of contract claim).=20
2. Because our resolution of He's second =
issue is=20
dispositive of his first issue, we need not reach his first issue. =
See Tex. R. App. P. 47.1. =