Mike Bhakta and Greenway Plaza Hospitality Inc. v. 2B2E, Inc., DBA Hughes Lumber-Plus

Memorandum Opinion of July 13, 2006 Withdrawn; Affirmed and Corrected Memorandum Opinion filed August 22, 2006 Memorandum Opinion of July 13, 2006 Withdrawn; Affirmed and Corrected Memorandum Opinion filed August 22, 2006. In The Fourteenth Court of Appeals _______________ NO. 14-04-01152-CV _______________ MIKE BHAKTA AND GREENWAY PLAZA HOSPITALITY, INC., Appellants V. 2B2E, INC., D/B/A HUGHES LUMBER‑PLUS, Appellee On Appeal from the County Civil Court at Law No. 3 Harris County, Texas Trial Court Cause No. 767,987 C O R R E C T E D  M EM O R A N D U M  O P I N I O N We withdraw our memorandum opinion of July 13, 2006 and issue this corrected memorandum opinion in its place. Appellants, Greenway Plaza Hospitality, Inc. and Mike Bhakta, appeal from a judgment in favor of appellee, 2B2E, Inc., d/b/a Hughes Lumber-Plus, in its suit to recover on an account. In one issue, appellants contend the trial court erred by admitting a delivery ticket supporting a disputed invoice relative to the account. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. I. Background Appellants own a hotel in Houston.[1] In 2000, they renovated the hotel and purchased materials from appellee, a building supply company. To facilitate the purchases, appellants opened a charge account with appellee. Without dispute, appellants paid the invoices for the majority of materials that they ordered from appellee. However, appellants disputed and refused to pay some invoices. Pertinent to this appeal, appellants dispute a $3,611.91 invoice for thirty-two windows, claiming they were never delivered. Appellee sued appellants seeking to recover $7,672.17 allegedly due on the account. At trial, Ralph Hughes, appellee=s representative, explained the process by which appellee filled appellants= orders and invoiced appellants. For the vast majority of appellants= orders, appellee placed the order with the manufacturer, who delivered the materials directly to the job site. The driver took two documents when delivering the materials: a packing slip, which was an itemized list of materials delivered; and a freight bill, on which the driver noted any damaged materials or shortages. The driver and the person at the job site who received the materials typically signed both documents. Appellee then received an invoice from the manufacturer usually accompanied by the packing slip and freight bill. After reviewing the packing slip and freight bill to be satisfied the ordered materials were delivered, appellee paid the manufacturer and invoiced appellants. Although Hughes had no personal knowledge whether the thirty-two windows at issue were delivered, he testified they were delivered because he received a packing slip and freight bill showing delivery. Over appellants= objection, the packing slip and freight bill (collectively Athe delivery ticket@)[2] were admitted into evidence. In contrast, Bhakta testified that the windows were never delivered. A jury found in favor of appellee at least with respect to some of the outstanding amounts and awarded $5,940.94 in damages. Pursuant to the jury=s verdict, the trial court entered judgment for this amount plus attorneys= fees and interest. II. Discussion In their sole issue, appellants contend the trial court erred by admitting the delivery ticket showing delivery of the thirty-two windows at issue because it was hearsay. They further contend that admission of the delivery ticket was reversible error because there would have been no evidence or insufficient evidence to support the jury=s verdict if the delivery ticket had been excluded.[3] The decision whether to admit evidence rests within the trial court=s sound discretion, and we review its decision under an abuse of discretion standard. Nat=l Liab. and Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527B28 (Tex. 2000); Owens‑Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Moreover, we will not reverse the trial court=s judgment unless an erroneous evidentiary ruling probably caused the rendition of an improper judgment. Tex. R. App. P. 44.1(a); Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004); Santos v. Comm=n for Lawyer Discipline, 140 S.W.3d 397, 401 (Tex. App.CHouston [14th Dist.] 2004, no pet.). We review the entire record and require the complaining party to demonstrate that the judgment turns on the particular evidence admitted. Armstrong, 145 S.W.3d at 144. Erroneous admission of evidence is harmless if it is merely cumulative. Id.; see Santos, 140 S.W.3d at 401B02. Appellants contend that the delivery ticket was hearsay and not admissible under any exception to the rule against hearsay. See Tex. R. Evid. 802, 803. Appellee offered the delivery ticket during its redirect examination of Hughes and attempted to lay the predicate for admission as appellee=s business record. See Tex. R. Evid. 803(6). Appellants objected that the delivery ticket was not appellee=s business record because it was prepared by the manufacturer, and Hughes had no personal knowledge regarding its preparation. The trial court overruled appellants= objection and admitted the delivery ticket.[4] We will assume, without deciding, that the trial court erred by admitting the delivery ticket because any error was harmless. See Santos, 140 S.W.3d at 401 (applying harm analysis after assuming without deciding trial court erred in excluding evidence). By the time the delivery ticket was admitted, the jury had already heard testimony demonstrating that a delivery ticket showed delivery of the windows. In particular, during appellants= earlier cross-examination of Hughes, the following exchange occurred: Q. And your testimony in regard to the amount that is due is based upon the fact that each and every item that=s stated in these invoices was delivered in good condition, is that correct? A. Yes. According to the package slip and credit bill. [APPELLANTS= COUNSEL]: Your Honor, I object. He=s testifying as to any other documents that are not in evidence that would be hearsay. THE COURT: Just listen to the question and answer it directly. If they wish to follow up their explanations they will follow with another question. Appellants did not obtain a ruling on their objection. Alternatively, if the trial court=s response could be characterized as implicitly sustaining the objection, appellants did not request and obtain an instruction that the jury disregard Hughes=s statement. See Patir v. MFC Int=l Corp., 60 S.W.3d 355, 357 (Tex. App.CHouston [1st Dist.] 2001, no pet.) (recognizing that once trial court sustains objection to testimony jury already heard, objecting party bears burden to ask the trial court to instruct the jury to disregard the testimony). Accordingly, despite appellants= objection, the jury could have considered Hughes=s statement as evidence that a delivery ticket verified delivery of the windows. Subsequently, on appellee=s redirect examination of Hughes, but before the delivery ticket was admitted, appellee=s counsel asked the following questions: Q. Did you ever -- did you receive a packing slip for these disputed items that Mr. Bhakta=s now claiming he didn=t get? A. Yes Q. Was there any notation on any of those packing slips that he didn=t receive those items? A. No. Appellants did not object to this testimony at all, much less on the ground that it was based on a document that was purportedly hearsay. In sum, before the delivery ticket was admitted, the jury twice heard testimony that Hughes received delivery tickets for all items that were the subject of the disputed invoices. Therefore, the jury could have rationally concluded that a delivery ticket verified delivery of the thirty-two windows at issue without the delivery ticket actually being admitted into evidence. Although the delivery was controverted by appellants, the jury, as trier of fact, heard some testimony upon which to base a finding that the windows were delivered notwithstanding any alleged error in admitting the delivery ticket. Consequently, we cannot conclude that any error in admitting the delivery ticket probably caused the rendition of an improper judgment, and we overrule appellants= sole issue. The judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Corrected Memorandum Opinion filed August 22, 2006. Panel consists of Justices Hudson, Fowler, and Seymore. [1] Appellant, Greenway Plaza Hospitality, Inc., owns the hotel, and appellant, Mike Bhakta, is an officer of Greenway Plaza Hospitality, Inc. who guaranteed payment of the account at issue. We will refer to them collectively as Aappellants@ except where necessary to refer to them separately. [2] In their briefs, the parties refer to the packing slip and freight bill collectively as the Adelivery ticket,@ so for consistency, we will do the same. [3] Although appellants state in their sole issue that there was no evidence or insufficient evidence to support the jury=s verdict, they do not challenge the sufficiency of the evidence in general. Instead, their sufficiency-of-the-evidence argument is part of their complaint that admission of the delivery ticket was reversible error because they contend there would be no evidence or insufficient evidence to show the windows at issue were delivered if the delivery ticket had been excluded. We also note that the invoice for these windows is $3,611.91, but the jury awarded appellee $5,940.94; thus, the disputed invoice did not constitute the entire damages award. Therefore, appellants have not shown how any reversible error in admitting the delivery ticket would vitiate the entire award. Nonetheless, because we ultimately conclude that admission of the delivery ticket was not reversible error, we need not consider what affect any reversible error would have had on the entire award. [4] Appellee initially offered all the disputed invoices and accompanying delivery tickets during Hughes=s direct examination. Appellants objected to admission of the delivery tickets as hearsay. The trial court sustained the objection and admitted the invoices only. However, appellee later offered, and the trial court admitted, the delivery tickets, including the one at issue, during Hughes=s redirect examination.