Renee Boone v. Citibank (South Dakota) N.A.

• Court: Court of Appeals of Texas
• Decided: December 21, 2006
• Docket: 09-05-00135-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-05-135 CV

RENEE BOONE, Appellant

V.

CITIBANK (SOUTH DAKOTA) N.A., Appellee

On Appeal from the 284th District Court

Montgomery County, Texas

Trial Cause No. 04-06-04339-CV

MEMORANDUM OPINION

Appellant Renee Boone appeals the trial court's judgment in favor of appellee Citibank (South Dakota), N.A. for the collection of delinquent credit card debts. Boone's first and second issues challenge the legal sufficiency of the evidence to support the trial court's judgment. The third issue asserts Citibank waived its right to prosecute its breach of contract claim because the claim had been resolved by arbitration proceedings. We affirm.

Citibank extended a line of credit to Boone and issued her an AT&T Universal credit card and a Citibank Visa credit card, which was apparently upgraded to a Citibank Platinum Select card. Citibank filed suit against Boone for breach of contract to recover the amount Boone allegedly owed on the credit cards, and, in the alternative, for quantum meruit. Citibank alleged that Boone defaulted in making payments on charges made to the line of credit thereby violating certain terms contained in the credit card agreements. Citibank also served Boone with requests for admissions, which Boone failed to answer. After a bench trial, the court awarded Citibank damages in the amount of $24,162.11, $500 in attorney's fees, and 5 % post-judgment interest. Boone appeals the trial court's final judgment.

Standard of Review

In Boone's first and second issues, she argues Citibank's business records affidavit and the pleadings are insufficient to support the trial court's judgment. ⁽¹⁾ When no findings of fact and conclusions of law are requested or filed, it is implied that the trial court made all fact findings necessary to support its judgment. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003) (citing BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)). When the appellate record includes the clerk's and reporter's records, these implied findings may be challenged for legal sufficiency points the same as jury findings or a trial court's findings of fact. Id.; Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). In our review of a legal sufficiency point, we review the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable fact finder could and disregard contrary evidence unless a reasonable fact finder could not. Id. at 827. The evidence is legally sufficient if it would enable fair-minded people to reach the verdict under review. Id. We will uphold the judgment on any legal theory that finds support in the record. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

Business Record Affidavit

Boone argues the trial court improperly admitted into evidence Boone's credit card statements, credit card agreements, and certain payments Boone made on the accounts because Citibank relied upon an inadequate business records affidavit. Boone alleges several defects in the form of the business records affidavit, including the fact that the affiant does not state he has personal knowledge with regard to the credit card accounts at issue, and neither the affidavit nor the pleadings establish certain elements of Citibank's breach of contract claim. ⁽²⁾ Boone further argues the affidavit does not meet the hearsay exception under Tex. R. Evid. 803(6). Boone did not present these complaints to the trial court by lodging an objection when the affidavit and accompanying exhibits were admitted into evidence. Thus, Boone has waived any objection to Citibank's business records affidavit and to the exhibits admitted into evidence. See Tex. R. App. P. 33.1(a).

Even if error had been preserved, the affidavit was sufficient to support the business records hearsay exception. The affiant, who was an employee of Citicorp Credit Services, Inc. (USA), Citibank's authorized agent and servicer, testified as to the following relevant information regarding the attached credit card records:

I am one of the custodians of records for Plaintiff [Citibank], and my duties include having custody and control of records relating to the account of RENEE BOONE, Citibank Account No. [AT&T Universal Card No.] and [Citibank Platinum Select Card No.] (the "Accounts"). These records are kept by Plaintiff in the regular course of business and it was in the regular course of business of Plaintiff for an employee or representative with personal knowledge of the act, event, condition, or opinion recorded to make the memorandum or records or to transmit information thereof to be included in such memorandum of records; and the records were made at or near the time of the act, event recorded, or reasonably soon thereafter. The records attached hereto are true and correct copies of the originals.[ ⁽³⁾]

The affidavit lays the foundation for each element of the business records exception to the hearsay rule. See Tex. R. Evid. 803(6), 902(10). Thus, the business records affidavit, along with the accompanying business records, were properly admitted into evidence.

Breach of Contract

Deemed Admissions

Along with Citibank's original petition, Citibank served Boone with requests for admissions. Boone failed to serve written responses within fifty days of Citibank's written requests. See Tex. R. Civ. P. 198.2(a). When requests for admissions are unanswered, the admissions are automatically deemed admitted, unless the court on motion permits their withdrawal or amendment. Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989). Once an admission is admitted, deemed or otherwise, it is a judicial admission, and a party may not introduce testimony to controvert it. See id.

The elements of a cause of action for breach of contract are: (1) the existence of a valid contract; (2) plaintiff's performance or tendered performance; (3) defendant's breach of the contract; and (4) plaintiff's damages as a result of the breach. Sullivan v. Smith, 110 S.W.3d 545, 546 (Tex. App.--Beaumont 2003, no pet.). Boone did not file a motion for the withdrawal or amendment of the deemed admissions. See Tex. R. Civ. P. 198.3. By failing to answer Citibank's request for admissions, Boone has admitted that (1) she and Citibank entered into an agreement to create a revolving charge agreement for credit and Boone understood she was obligated to repay all charges or cash advances incurred on the accounts (Request Nos. 3, 5); (2) Boone requested that Citibank open a credit card account on her behalf, and Citibank opened the account (Request Nos. 1, 2); and (3) Boone has breached her agreement with Citibank (Request No. 11). Thus, the first three elements of Citibank's breach of contract claim have been conclusively established by deemed admissions. ⁽⁴⁾ See Tex. R. Civ. P. 198.3.

Legal Sufficiency Review

Although we hold the deemed admissions conclusively establish the first three elements of Citibank's breach of contract claim, we will nevertheless review the entire record to determine whether there is legally sufficient evidence to support the trial court's judgment as to all of the breach of contract elements. At trial, Boone acknowledged that she made some of the charges and owed some of the credit card debt at issue. This evidence implies that Citibank and Boone entered into the credit card agreements; ⁽⁵⁾ Citibank furnished Boone with the credit cards; and Boone used the cards to make purchases and cash advances. It also implies that because Boone indicated at trial that she had an outstanding balance, she breached her agreement with Citibank to repay all charges and cash advances.

Without objection, Citibank offered into evidence a business records affidavit accompanied by the credit card balance statements of the AT&T Universal card, the Citibank Visa card, and the upgraded Citibank Platinum Select card. ⁽⁶⁾ The business records affidavit indicates that the AT&T card and the upgraded Citibank Platinum card are Citibank accounts. ⁽⁷⁾ The balance statements provide the amount due on purchases made and cash advances received on the accounts. The statements also indicate the rate of interest charged on overdue balances. ⁽⁸⁾ The ending balance due on the AT&T card is $8,735.25 (RR: and the amount remaining due on the Citibank Platinum Select Card is $16,405.79. ⁽⁹⁾ Thus, although the trial court awarded an amount less than indicated on these statements, there is some evidence to support the trial court's $24,162.11 award. We overrule Boone's first two issues. ⁽¹⁰⁾

Arbitration Award

Boone's third issue claims Citibank waived its right to prosecute its breach of contract claim because the claim had been resolved by arbitration proceedings. Boone received an arbitration award regarding the balance due on the credit cards at issue from National Arbitration Council, Inc. However, the assertion of "arbitration and award" is an affirmative defense that must be affirmatively pleaded or it is waived. Tex. R. Civ. P. 94; Wright v. Matthews, 26 S.W.3d 575, 579 (Tex. App.--Beaumont 2000, pet. denied) (noting that an affirmative defense must be pleaded or it is waived). Boone did not affirmatively plead arbitration and award; thus she has failed to preserve error on this issue. Issue three is overruled. The judgment is affirmed.

AFFIRMED.

__________________________________

CHARLES KREGER

Justice

Submitted on May 18, 2006

Opinion Delivered December 21, 2006

Before McKeithen, C.J., Kreger and Horton, JJ.

1. Boone does not expressly present these issues as legal sufficiency challenges. However, because she has cited legal sufficiency case law, we will construe these issues as such.

2. Boone contends these defects are insufficient to support a summary judgment under Tex. R. Civ. P. 166a. Although Citibank filed a motion for summary judgment and the motion was set for hearing, no ruling on the motion appears in the record. This case was tried to the trial court.

3. The express language of the affidavit controverts the following arguments Boone asserts regarding the affiant: (1) the affiant failed to establish he was an employee of Citibank; (2) the affiant does not state who maintained the business records; (3) the affiant failed to show he had personal knowledge regarding Citibank's records retention policy; and (4) the affiant did not establish he had personal knowledge regarding the Citibank Visa account, which was upgraded to the Citibank Platinum Select card. Boone also argues that the credit card statements are not true and correct copies because they are not two-sided. Boone admitted, in request for admissions no. 21, that the balance statements showing the final balance due on the accounts were true and correct copies. Furthermore, "[a] duplicate is admissible to the same extent as an original unless (1) a question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." Tex. R. Evid. 1003. Boone has not challenged the authenticity of the original balance statements and, considering that Boone may be the party in possession of the original balance statements, we do not find that it was unfair for the trial court to admit the copies in lieu of the originals.

4. We note that an argument may be made that Citibank has waived its right to rely on requests for admissions nos. 9, 10, and 12 regarding the amount due on the credit cards when Citibank allowed Boone to testify and submit evidence that may have controverted these admissions. See Marshall, 767 S.W.2d at 700 (explaining that when a party attempts to offer evidence that contradicts the deemed admissions, the party relying on the admissions must protect the record and object to the introduction of the evidence). Without deciding whether Citibank has waived its rights to rely on these admissions, we will review the damages element of the breach of contract claim as part of our legal sufficiency analysis.

5. Boone argues Citibank failed to prove the existence of a contract because the credit card agreements entered into evidence did not name the parties to the agreement; Citibank did not prove that the agreements were delivered to Boone or that Boone accepted the terms of the agreements; and the agreements were not definite in their terms. We find there is some evidence of the agreements because Boone admitted that she and Citibank entered into the agreements and her testimony indicates that she used the credit cards.

6. Boone argues there is no evidence she received these statements. Boone's address appears on each statement. Furthermore, she has admitted, by failing to respond to request for admission no. 6, that she received credit card statements for both accounts on a monthly basis.

7. The first balance statement on the Citibank Platinum card indicates that the beginning balance on the platinum card is the remaining balance from the prior Citibank Visa card. This indicates that the Citibank Visa card was also an account owned by Citibank.

8. Boone challenges the amount of interest applied to the accounts and alleges that Citibank failed to establish the contractual interest rate and did not prove that it sent her any notices regarding interest rate increases as required by the credit card agreements. However, when Boone failed to respond to Citibank's request for admissions no. 18, she admitted that the contractual rate of interest was 23.990% per year. Boone is not allowed to offer evidence to controvert this admission. See Marshall, 767 S.W.2d at 700. Boone also contends that Citibank failed to establish that the interest rates charged were in compliance with applicable usury laws. The Rules of Civil Procedure provide that a party asserting that a contract sued upon is usurious must file a verified pleading, otherwise no evidence of usurious interest as a defense shall be received. Tex. R. Civ. P. 93(11). Boone did not file a verified pleading; thus she has waived all arguments regarding this issue. See Tex. R. Civ. P. 93(11).

9. Boone contends Citibank failed to prove that it properly calculated the amounts due on the accounts. The balance statements themselves provide some evidence as to the amounts due on the accounts. We may thus assume the trial court made an implicit finding that the calculations used to determine the amounts were accurate.

10. Because the evidence establishes that a contract existed, the trial court could not have awarded damages based on Citibank's quantum meruit theory. See Tully v. Citibank (S.D.), N.A., 173 S.W.3d 212, 216 (Tex. App.--Texarkana 2005, no pet.).