Nasrin F. Khan v. Asset Acceptance, LLC ( 2014 )

Affirmed and Memorandum Opinion filed April 10, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00275-CV
NASRIN F. KHAN, Appellant
V.
ASSET ACCEPTANCE, LLC, Appellee
On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 992245
MEMORANDUM OPINION
This is an appeal from an agreed judgment granted in favor of Asset
Acceptance, LLC. Nasrin F. Khan,1 appearing pro se, raises a single issue with
several subparts. We affirm the trial court’s judgment.
1
Khan’s first name is sometimes spelled as “Narsin.” We follow the spelling used in the
notice of appeal.
BACKGROUND
Asset Acceptance sued Khan to collect on an unpaid credit card account.
Khan filed an answer pro se, generally denying the allegations against him. When
the parties appeared for trial, Asset Acceptance advised the court that Khan had not
responded to any of its discovery requests. Asset Acceptance asserted that it had a
business records affidavit on file and that it was ready to proceed to trial.
The trial court questioned Khan about his failure to respond to discovery, but
Khan’s answers were mostly evasive. The court encouraged the parties to negotiate
their “discovery hangup.” The court also advised Khan that he was vulnerable to
judgment because admissions could be deemed against him.
When the parties returned from their negotiations, they announced that they
had reached a settlement. The trial court entered an agreed final judgment
accordingly, awarding Asset Acceptance $15,990.33, plus interest.
ANALYSIS
Khan filed this appeal, raising several legal complaints under the umbrella of
a single issue. He first contends that Asset Acceptance lacked standing to file suit.
Khan bases this argument on the fact that he signed his credit card agreement with
Wells Fargo Bank, not Asset Acceptance.
Standing is a necessary component of subject matter jurisdiction. See Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444–45 (Tex. 1993).
Standing cannot be waived and may be challenged for the first time on appeal. Id.
at 445–46. Whether a party has standing to pursue a claim is a question of law
reviewed de novo. See Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d
637, 646 (Tex. 2004).
2
Standing is a party’s justiciable interest in a controversy. See Nootsie, Ltd. V.
Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 661–62 (Tex. 1996). Only the
party whose primary legal right has been breached may seek redress for an injury.
See Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 249 (Tex. App.—Dallas
2005, no pet.). We look to the pleadings to determine whether a plaintiff has
standing, construing the petition in favor of the plaintiff. See Tex. Air Control Bd.,
852 S.W.2d at 446. If necessary, we also review the entire record to determine if
any evidence supports standing. Id.
The pleadings in this case are short and basic. Asset Acceptance alleged that
Khan opened a line of credit with Wells Fargo Bank. Asset Acceptance then
alleged that it purchased the account. The record includes a bill of sale from Wells
Fargo to Asset Acceptance, proving the alleged purchase. Khan does not dispute
any of these facts, nor has he produced any evidence to the contrary. We conclude
that Asset Acceptance has standing to pursue its claims as owner of Khan’s
account. See Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269, 275, 128 S.
Ct. 2531, 2536 (2008) (“Assignees of a claim, including assignees for collection,
have long been permitted to bring suit.”); Eaves v. Unifund CCR Partners, 301
S.W.3d 402, 405 (Tex. App.—El Paso 2009, no pet.) (debt collector has standing
to sue the cardholder).
Khan argues next that the trial court abused its discretion by failing to
consider his general denial and by not holding Asset Acceptance to its burden of
proving up its own case. Khan also argues that the trial court erred by not
dismissing the case for want of prosecution when Asset Acceptance failed to
respond to Khan’s discovery requests. Khan does not cite to any authority for these
arguments. Asset Acceptance responds that Khan has forfeited his complaints
because of briefing waiver, see Tex. R. App. P. 38.1(i), or alternatively, because all
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errors were waived when the parties entered into an agreed settlement. We address
only the second point.
Generally, a party cannot appeal from a judgment to which it has consented
or agreed absent an allegation and proof of fraud, collusion, or misrepresentation.
See Chang v. Linh Nguyen, 81 S.W.3d 314, 316 n.1 (Tex. App.—Houston [14th
Dist.] 2001, no pet.). Any errors that might have been committed by the trial court
prior to the entry of a consent judgment are waived, except for jurisdictional error.
See Tait v. Matthews, 33 Tex. 112, 112 (1870); Baw v. Baw, 949 S.W.2d 764, 766
(Tex. App.—Dallas 1997, no writ). To have a valid consent judgment, each party
must explicitly and unmistakably give its consent. See Baw, 949 S.W.2d at 766.
The phrase “approved as to form and substance,” standing alone, does not
transform a judgment into a consent judgment. See Oryx Energy Co. v. Union Nat’l
Bank of Tex., 895 S.W.2d 409, 417 (Tex. App.—San Antonio 1995, no writ).
Rather, in order for a judgment to be a consent judgment, the body of the judgment
must suggest that the case has been settled or that the judgment was rendered by
consent. See Chang, 81 S.W.3d at 316 n.1.
The agreed judgment in this case contains the following language:
Both sides have announced to the Court that they have agreed
to settle the matters involved in this suit, and that [Khan] ha[s] agreed
to judgment for [Asset Acceptance] for the sums set forth in this
judgment.
The court, upon request of the parties, finds that it has
jurisdiction over the parties and subject matter of this suit; that there is
a bona fide dispute between the parties; that the settlement of the
dispute reflected herein is fair, reasonable, and just; and that it would
be in the best interests of the parties if the Court approved the
settlement and rendered judgment accordingly.
4
Both parties signed the agreed judgment, and they each approved it as to both form
and substance. Because the judgment expressly states that the parties have settled
their dispute, we conclude that the judgment is a consent judgment.
Khan has not argued on appeal that he withdrew his consent. Nor does he
argue that the judgment was obtained by fraud, collusion, or misrepresentation. By
consenting to entry of the judgment, Khan waived any non-jurisdictional errors.
See Boufaissal v. Boufaissal, 251 S.W.3d 160, 162 (Tex. App.—Dallas 2008, no
pet.). Therefore, we need not address his remaining complaints.
CONCLUSION
We overrule Khan’s sole issue and affirm the judgment of the trial court.
/s/ Tracy Christopher
Justice
Panel consists of Justices Boyce, Christopher, and Brown.
5