Sameera Arshad and Almorfa LLC v. American Express Bank FSB ( 2019 )

Affirmed and Opinion filed July 25, 2019.
In The
Fourteenth Court of Appeals
NO. 14-17-00676-CV
SAMEERA ARSHAD AND ALMORFA, LLC, Appellants
V.
AMERICAN EXPRESS BANK, FSB, Appellee
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2015-69785
OPINION
Appellants Sameera Arshad and Almorfa, LLC (the “Arshad Parties”) appeal
the final judgment in favor of appellee American Express Bank, FSB on its breach-
of-contract claim based on the Arshad Parties’ failure to pay their credit card debt.
We affirm.
I. BACKGROUND
The Arshad Parties obtained a “Business Gold Rewards” credit card from
American Express in 2012. Several years later, American Express sued them for
breach of contract, alleging they had defaulted on the credit card by failing to pay
under the Cardmember Agreement. American Express alleged they owed
$316,007.19. The Arshad Parties filed a general denial and also pleaded the
affirmative defense of statute of limitations.
Business Records Affidavit
American Express filed a notice of business records affidavit of Mario D.
Morales-Arias, an assistant custodian of records for American Express. The records
included the Cardmember Agreement and account statements showing charges made
to the card and payments made on the account balance by the Arshad Parties. Before
the start of the bench trial, American Express informed the trial court in open court
that Morales-Arias would testify as to the authenticity of its records, which
American Express would seek to introduce into evidence at trial, and “show the
Court that they are kept within and pursuant to the regular course of business.”
American Express advised the trial court that it had provided the documents to the
Arshad Parties in a business-records affidavit by Morales-Arias, which American
Express had filed with the court, and that American Express also had produced the
documents to the Arshad Parties through discovery.
Admission of Business Records into Evidence
The Arshad Parties objected to the use of the records and the testimony of
Morales-Arias. They asserted that they did not receive the business-records affidavit
and that the affidavit was not filed with the court. The trial court, however,
confirmed that the business records affidavit had been filed with the court, and the
Arshad Parties acknowledged that they had received the records through discovery.
The Arshad Parties further objected to Morales-Arias testifying because American
Express did not designate Morales-Arias as a witness; they sought the automatic
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exclusion of his testimony under Texas Rule of Civil Procedure 193.6.1 American
Express responded that it had provided Morales-Arias’s name to the Arshad Parties
in response to their requests for disclosures. American Express further stated that it
was designating Morales-Arias as its corporate representative at trial so it was not
necessary to disclose him as a person with knowledge of relevant facts.
The trial court ruled that it would (1) allow American Express to call one
witness; (2) not allow the business-records affidavit with the documents into
evidence; (3) allow American Express to ask questions only about the documents
produced during discovery; and (4) allow the Arshad Parties to cross-examine the
witness, at which time the trial court would determine whether the documents would
be admitted into evidence. Morales-Arias was the only witness to testify at trial.
The trial court admitted the records that were produced in discovery into evidence.
Final Judgment
The trial court rendered a final judgment for American Express in the amount
of $316,007.19. At the Arshad Parties’ request, the trial court issued findings of fact
and conclusions of law. The Arshad Parties timely filed this appeal from the final
judgment.
II. ISSUES ON APPEAL
In two issues, the Arshad Parties (1) claim that the trial court erred in
overruling the Arshad Parties’ objection to the testimony of Morales-Arias; and (2)
challenge the legal and factual sufficiency of the evidence to support the judgment
on American Express’s breach-of-contract claim.
1
See Tex. R. Civ. P. 193.6.
3
III. ANALYSIS
We do not address the Arshad Parties’ issues in the order in which they were
briefed. Issues, if sustained, that require the judgment to be reversed and rendered
should be addressed first. See Tex. R. App. P. 43.3 (providing that when reversing
a judgment, the appellate court must render judgment unless a remand is required);
In re S.R., 452 S.W.3d 351, 359 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)
(“If disposition of an issue would result in a rendition of judgment, an appellate court
should consider that issue before addressing any issues that would result only in a
remand for a new trial.”). Therefore, because the second issue includes a challenge
to the legal sufficiency of the evidence to support the judgment, we address it first.
See Horrocks v. Tex. Dep’t of Transp., 852 S.W.2d 498, 499 (Tex. 1993) (per
curiam) (“Ordinarily, an appellate court should render judgment after sustaining a
complaint as to the legal sufficiency of the evidence.”).
A. Is the evidence legally and factually sufficient to support the judgment?
In their second issue, the Arshad Parties challenge the legal and factual
sufficiency of the evidence to support American Express’s breach-of-contract claim.
In an appeal from a bench trial, the trial court’s findings of fact have the same
force and dignity as a jury verdict. Anderson v. City of Seven Points, 806 S.W.2d
791, 794 (Tex. 1991). We review the trial court’s findings using the same standards
of review applicable to a jury’s verdict. See MBM Fin. Corp. v. Woodlands
Operating Co., 292 S.W.3d 660, 663 n.3 (Tex. 2009).
When reviewing the legal sufficiency of the evidence, we consider the
evidence in the light most favorable to the challenged finding and indulge every
reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d
802, 823 (Tex. 2005). We credit favorable evidence if a reasonable factfinder could
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and disregard contrary evidence unless a reasonable factfinder could not. See id. at
827. Our task is to determine whether the evidence at trial would enable reasonable
and fair-minded people to find the facts at issue. See id. As long as the evidence at
trial “would enable reasonable and fair-minded people to differ in their conclusions,”
we will not substitute our judgment for that of the factfinder. See id. The factfinder
is the only judge of witness credibility and the weight to give to testimony. See id.
When reviewing a challenge to the factual sufficiency of the evidence, we
examine the entire record, considering both the evidence in favor of, and contrary
to, the challenged finding. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–
07 (Tex. 1998). When a party challenges the factual sufficiency of the evidence
supporting a finding for which it did not have the burden of proof, we set aside the
verdict only if it is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust. See id. at 407. We may not substitute our own judgment
for that of the trier of fact, even if we would reach a different answer on the evidence.
Maritime Overseas Corp., 971 S.W.2d at 407. The amount of evidence necessary
to affirm a judgment is far less than that necessary to reverse a judgment. GTE
Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied).
An appellant may not challenge a trial court’s conclusions of law for factual
sufficiency, but we may review the legal conclusions drawn from the facts to
determine their correctness. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d
789, 794 (Tex. 2002). “If the reviewing court determines a conclusion of law is
erroneous, but the trial court rendered the proper judgment, the erroneous conclusion
of law does not require reversal.” Id.
1. The evidence is sufficient to establish a binding contract.
To establish a claim for breach of contract, a plaintiff must prove the following
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elements: (1) a valid contract; (2) performance or tendered performance by the
plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by
the plaintiff as a result of the breach. Smith v. Smith, 541 S.W.3d 251, 259 (Tex.
App.—Houston [14th Dist.] 2017, no pet.). The Arshad Parties challenge the
existence of a valid contract. To prove the existence of a valid contract, a plaintiff
must establish that (1) an offer was made; (2) the other party accepted in strict
compliance with the offer’s terms; (3) the parties had a meeting of the minds on the
contract’s essential terms; (4) each party consented to the those terms; and (5) the
parties executed and delivered the contract with the intent that it be mutual and
binding. USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 501 n.21 (Tex.
2018).
The Arshad Parties assert that there is no contract because there are no
signatures. Contracts require mutual assent to be enforceable. Baylor Univ. v.
Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007) (per curiam). Evidence of mutual
assent in written contracts generally consists of signatures of the parties and delivery
with the intent to bind. Id. Although signatures and delivery evince the mutual
assent required for a contract, they are not essential. Phillips v. Carlton Energy Grp.,
LLC, 475 S.W.3d 265, 277 (Tex. 2015). “[A] contract need not be signed to be
‘executed’ unless the parties explicitly require signatures as a condition of mutual
assent. If a written draft of an agreement is prepared, submitted to both parties, and
each of them expresses his unconditional assent thereto, there is a written contract.”
Id. (internal quotations and citations omitted).
The Cardmember Agreement states in relevant part:
When you or an Additional Cardmember, as defined below, use the
Account (or sign or keep a card), you and the Additional Cardmember
agree to the terms of the Agreement.
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The Cardmember Agreement provides that by using, signing, or keeping the
card, the Arshad Parties agreed to the terms of the agreement. In its written findings
of fact and conclusions of law, the trial court found that the Arshad Parties
“requested a card from [American Express] and used the card issued by [American
Express].” The trial court also found that the Arshad Parties “were sent monthly
billing statements”; “made payments on the account”; and “were aware of the
charges and agreed to the terms of payment in the Card Member [sic] Agreement.”
The Arshad Parties do not dispute that the card was delivered to Sameera
Arshad or that Sameera Arshad kept and used the card. The statements reflect the
charges made on the account and the payments made. These actions manifested the
Arshad Parties’ intent that the agreement become effective. Duran v. Citibank
(S.D.), N.A., No. 01-06-00636-CV, 2008 WL 746532, at *4 (Tex. App.—Houston
[1st Dist.] Mar. 20, 2008, no pet.) (mem. op.) (holding that the bank established the
existence of a valid contract as a matter of law by showing that the appellant used
the card and made some payments manifesting an intent that the agreement become
effective in breach-of-contract action); Hinojosa v. Citibank (S.D.), N.A., No. 05-07-
00059-CV, 2008 WL 570601, at*3 (Tex. App.—Dallas Mar. 4, 2008, pet. denied)
(mem. op.) (holding that the appellant’s acceptance and use of card established the
existence of a contract as a matter of law in breach-of-contract action); Ghia v. Am.
Express Travel Related Servs., No. 14-06-00653-CV, 2007 WL 2990295, at *2 (Tex.
App.—Houston [14th Dist.] Oct. 11, 2007, no pet.) (mem. op.) (holding that the
appellant accepted the terms of the credit card agreement by retaining and using the
card in breach-of-contract action); Winchek v. Am. Express Travel Related Servs.
Co., 232 S.W.3d 197, 204 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding
that the appellant’s conduct in using the card and making payments on the account
for the purchases and charges reflected on her monthly billing statements manifested
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her intent that the contract become effective in breach-of-contract action).
The Arshad Parties suggest that the trial court sua sponte allowed American
Express to recover on the theory of “account stated,” which they posit has a lower
threshold for proof than a claim for breach of contract. To establish the right to
recover under the common-law claim of account stated, the creditor must show the
following: (1) transactions between the parties give rise to indebtedness of one to
the other; (2) an agreement, express or implied, between the parties that fixes the
amount due; and (3) the party to be charged makes a promise, express or implied, to
pay the indebtedness. Busch v. Hudson & Keyes, LLC, 312 S.W.3d 294, 299 (Tex.
App.—Houston [14th Dist.] 2010, no pet.). Because an agreement on which an
account-stated claim is based can be express or implied, a creditor need not produce
a written contract to establish the agreement between the parties; an implied
agreement can arise from the parties’ acts and conduct. Id.
We reject the Arshad Parties’ contention that the trial court rendered judgment
on a claim for account stated. The trial court concluded that the Arshad Parties
“breached the contract by failing to pay [American Express] in accordance with the
terms of the contract.” As addressed above, American Express established an
express written contract with the Arshad Parties as required to recover on its breach-
of-contract claim. See Duran, 2008 WL 746532, at *4; Hinojosa, 2008 WL 570601,
at*3; Ghia, 2007 WL 2990295, at *2; Winchek, 232 S.W.3d at 204.
2. The evidence is sufficient to prove American Express’s damages.
The Arshad Parties further claim that American Express did not prove its
damages because the agreement does not identify an interest rate. The Cardmember
Agreement, which was introduced into evidence, states when American Express
charges interest, how it calculates interest, and how it determines the Prime Rate.
But, the Cardmember Agreement does not state that American Express charges
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interest. A review of the account statements, which were also in evidence, reflects
that American Express did not charge interest on the overdue balance. The Arshad
Parties do not otherwise assert that American Express could not calculate and prove
its damages. The trial court expressly found that the damages are $316,007.97, an
amount reflected in the last account statement showing the outstanding balance.
3. The evidence is sufficient to establish that a second card user was
authorized.
The Arshad Parties also assert that the record contains no evidence that a
second card user, Arshad Dhillon, was authorized. As to Additional Cardmembers,
the Cardmember Agreement states:
At your request, we may issue cards to Additional Cardmembers. They
do not have accounts with us but they can use your Account subject to
the terms of this Agreement.
You are responsible for all use of the Account by Additional
Cardmembers and anyone they allow to use the Account. You must
pay for all charges they make. You must share this Agreement with all
Additional Cardmembers.
You must tell Additional Cardmembers that:
we may obtain, provide and use information about them.
their use of the Account is subject to this Agreement.
You authorize us to give Additional Cardmembers information about
the Account and to discuss it with them.
If you want to cancel an Additional Cardmember’s right to use your
Account (and cancel their card) you must tell us.
The trial court did not make an express finding that Dhillon was an Additional
Cardholder. The Cardmember Agreement provides that an additional card will be
issued at the request of the original card holder. The Arshad Parties rely on Morales-
Arias’s testimony that there was nothing in American Express’s records to show that
a request was made for an Additional Cardmember. The account statements show
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that Arshad Dhillon was charging to the account as an Additional Cardmember and
the Arshad Parties made payments on Dhillon’s purchases. If the Arshad Parties had
a dispute regarding Dhillon having a card and charging purchases to the Arshad
Parties’ account, they failed to contact American Express. The evidence supports
the trial court’s implied finding that Dhillon was an authorized Additional
Cardmember.
Under the applicable standards of review, we conclude that the evidence at
trial is legally and factually sufficient to support the trial court’s rendition of
judgment based on American Express’s breach-of-contract claim against the Arshad
Parties. See Smith, 541 S.W.3d at 259; Duran, 2008 WL 746532, at *4; Ghia, 2007
WL 2990295, at *2; Winchek, 232 S.W.3d at 204.
4. There was no acceleration of the maturity of debt.
The Arshad Parties argue that the record contains no evidence there is no
evidence or insufficient evidence of acceleration of maturity. “Acceleration is a
harsh remedy with draconian consequences for the debtor and Texas courts look
with disfavor upon the exercise of this power because great inequity may result.”
Mastin v. Mastin, 70 S.W.3d 148, 154 (Tex. App.—San Antonio 2001, no pet.).
Accelerated maturity is associated with notes that are initially contemplated to
extend over a period of months or years, such as those used with installment loans.
See Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex. 1975).
Because acceleration is considered a harsh remedy, courts construe any ambiguous
clause providing for acceleration against acceleration. Schuhardt Consulting Profit
Sharing Plan v. Double Knobs Mountain Ranch, Inc., 468 S.W.3d 557, 569 (Tex.
App.—San Antonio 2014, pet. denied).
The Arshad Parties’ credit-card debt is not an installment loan. See 7 Tex.
Admin. Code § 83.102(12) (Officer of Consumer Credit Commissioner, Definitions)
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(“Installment loan—Any type of closed-end loan with multiple scheduled
payments.”). Credit-card indebtedness is not the type of debt to which acceleration
of maturity applies. Moreover, a review of the Cardmember Agreement shows that
it does not contemplate acceleration, as the contract contains no clause providing for
acceleration. Consistent with the lack of any term in the Cardmember Agreement
providing for acceleration, the trial court made no findings of facts on acceleration.
We overrule the Arshad Parties’ second issue.
B. Did the trial court err by overruling the Arshad Parties’ objection to the
testimony of Morales-Arias?
In their first issue, the Arshad Parties complain that the trial court should have
excluded Morales-Arias from testifying because American Express did not (1)
designate Morales-Arias as its corporate representative at trial, (2) provide Morales-
Arias’s address and phone number, (3) establish that failing to designate Morales-
Arias as a corporate representative at trial did not unfairly surprise or unfairly
prejudice the Arshad Parties, or (4) show good cause for failing to timely identify
Morales-Aria as a witness.
A party who fails to make, amend, or supplement a discovery response in a
timely manner may not offer the testimony of a witness, other than a party, who was
not timely identified, unless the court finds that there was good cause for the failure
or the failure will not unfairly surprise or unfairly prejudice another party. Tex. R.
Civ. P. 193.6(a); Adeleye v. Driscal, 544 S.W.3d 467, 478 (Tex. App.—Houston
[14th Dist.] 2018, no pet.). The burden of establishing good cause or lack of unfair
surprise or unfair prejudice rests on the party seeking to call the witness, and the
record must support such findings. Trevino v. City of Pearland, 531 S.W.3d 290,
299 (Tex. App.—Houston [14th Dist.] 2017, no pet). The trial court has discretion
to determine whether the party seeking to introduce the evidence has met its burden.
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Fort Brown Villas III Condo. Ass’n, Inc. v. Gillenwater, 285 S.W.3d 879, 882 (Tex.
2009) (per curiam). Thus, we review a trial court’s finding under Rule 193.6 for an
abuse of discretion. Trevino, 531 S.W.3d at 299.
1. American Express designated Morales-Arias as its corporate
representative at trial.
The Arshad Parties assert that American Express never designated Morales-
Arias as its corporate representative at trial. Rule 193.6’s exclusion provision does
not apply to a party. See Tex. R. Civ. P. 193.6 (providing that rule mandating
exclusion of witness testimony for failure to disclose witness does not apply to a
named party). Corporations can act only through human agents of the corporation
and “when an officer or corporate representative acts on behalf of a corporate entity,
that act is the act of the corporation itself.” Speedy Stop Food Stores, Ltd. v. Reid
Rd. Mun. Util. Dist. No. 2, 282 S.W.3d 652, 656 n.2 (Tex. App.—Houston [14th
Dist.] 2009), aff’d, 337 S.W.3d 846 (Tex. 2011). American Express was entitled to
have a corporate representative present at the trial. This court has held that a trial
court may not exclude the testimony of a corporate representative at trial, even if the
corporation fails to disclose the representative as a witness in its discovery
responses. See In re M.P.J., No. 14-03-00746-CV, 2004 WL 1607507, at *3 (Tex.
App.—Houston [14th Dist.] Jul. 20, 2004, pet. denied) (mem. op.).
The Arshad Parties further posit that the corporate representative “must be
qualified to testify for the corporation and have the requisite personal knowledge to
authenticate the evidence he attempts to authenticate for the corporation.” At the
beginning of the proceedings, American Express announced to the trial court that
Morales-Arias would serve as its designated corporate representative at trial. The
Arshad Parties cite no authority requiring a corporate party to designate its corporate
representative by a certain date before trial or that only certain individuals can be
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designated as a corporate representative. The Arpad Parties have not shown that the
trial court erred in allowing American Express to designate its corporate
representative at the beginning of trial. American Express demonstrated that
Morales-Arias was qualified to testify about the authenticity of the records, and the
Arshad Parties did not object on the basis that Morales-Arias’s was not qualified to
testify about that subject matter. Because Morales-Arias was American Express’s
corporate representative at trial, the trial court had no authority to exclude Morales-
Arias’s testimony, even if American Express had failed to disclose Morales-Arias as
a witness. See In re M.P.J., 2004 WL 1607507, at *3. Thus, the trial court did not
abuse its discretion in failing to exclude Morales-Arias from testifying under Rule
193.6(a). See id. We need not address the Arshad Parties’ arguments that American
Express did not provide Morales-Arias’s phone number and that American Express’s
failure to identify Morales-Arias as a fact witness unfairly surprised and unfairly
prejudiced the Arshad Parties.2 We overrule the Arshad Parties’ first issue.
Having overruled the Arshad Parties’ issues, we affirm the judgment of the
trial court.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Spain and Poissant.
2
Even if we were required to address these arguments, we would conclude that they lack merit.
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