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National Collegiate Student Loan Trust 2006-2 v. Ramirez

Court of Appeals of Texas, Second District, Fort Worth

March 9, 2017

NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-2 APPELLANT
v.
PABLO RAMIREZ APPELLEE

         FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY TRIAL COURT NO. 2014-001130-2

          PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.

          MEMORANDUM OPINION [1]

          BONNIE SUDDERTH JUSTICE

         I. Introduction

         Appellant National Collegiate Student Loan Trust 2006-2 (National) appeals a take-nothing judgment rendered in its lawsuit against Appellee Pablo Ramirez for breach of contract and account stated related to Ramirez's alleged default on his student loan. In a single issue, National argues that the trial court abused its discretion by excluding certain portions of evidence attached to a business records affidavit, which it complains prevented it from showing its damages from Ramirez's default on his student loan. We affirm.

         II. Procedural Background

         National filed suit in March 2014 and moved for and obtained a default judgment in October 2014. Ramirez subsequently moved to set aside the default judgment on the basis of defective service, and the trial court vacated the default judgment in December 2014. The case went to a bench trial on January 15, 2016. After National rested at the conclusion of its presentation of evidence, [2] the trial court granted a take-nothing judgment for Ramirez. National did not request-and the trial court did not make-findings of fact and conclusions of law.

         National raised its claims as an alleged assignee, pleading that "Plaintiff is the trust that currently holds these loans [sic], and is entitled to repaying of the loan and all applicable interest, " and sued Ramirez for "Suit on Open & Stated Account/Debt/Breach of Contract, " quantum meruit, and attorney's fees. Thus, National assumed the burden to prove not only its claims but also its assignee status.[3]

         The elements of a breach of contract claim are (1) the existence of a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the contract by the defendant, and (4) resulting damages to the plaintiff. Rice v. Metro. Life Ins. Co., 324 S.W.3d 660, 666 (Tex. App.-Fort Worth 2010, no pet.). A valid contract requires an offer, an acceptance in strict compliance with the offer's terms, a meeting of the minds, each party's consent to the terms, and execution and delivery of the contract with the intent that it be mutual and binding, along with consideration. Kang v. Song, No. 02-15-00148-CV, 2016 WL 4903271, at *8 (Tex. App.-Fort Worth Sept. 15, 2016, no pet.) (mem. op.). A party is entitled to relief under the common law cause of action of account stated when (1) transactions between the parties give rise to indebtedness of one to the other; (2) an agreement, express or implied, between the parties fixes an amount due; and (3) the one to be charged makes a promise, express or implied, to pay the indebtedness. Morrison v. Citibank (South Dakota) N.A., No. 02-07-00130-CV, 2008 WL 553284, at *1 (Tex. App.-Fort Worth Feb. 28, 2008, no pet.) (mem. op.). A plaintiff seeking to recover in quantum meruit under an implied promise to pay must show that (1) valuable services or material were furnished; (2) for the defendant; (3) the services or materials were accepted, used, and enjoyed by the defendant; and (4) the circumstances reasonably notified the defendant that the plaintiff was expecting to be paid by the defendant for the services or materials. Wilson v. Andrews, No. 02-06-00429-CV, 2007 WL 2460356, at *3 (Tex. App.-Fort Worth Aug. 31, 2007, pet. denied) (mem. op.). To recover as an assignee under any of these three causes of action, National was required to prove not only that a cause of action existed that was capable of assignment but also that the cause of action was in fact assigned to it. See Tex. Farmers Ins., 880 S.W.2d at 217; see also Rolen, 2010 WL 1633402, at *2.

         In a trial to the court in which no findings of fact or conclusions of law are filed, the trial court's judgment implies all findings of fact necessary to support it. Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766-67 (Tex. 2011); Wood v. Tex. Dep't of Pub. Safety, 331 S.W.3d 78, 79 (Tex. App.-Fort Worth 2010, no pet.).[4] The judgment must be affirmed if it can be upheld on any legal theory that finds support in the record. Rosemond, 331 S.W.3d at 767; see also Liberty Mut. Ins. Co., 295 S.W.3d at 777 (stating that the judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence).

         III. Analysis

         In its sole issue, National argues that the trial court abused its discretion by excluding from evidence the loan financial activity report and the loan payment history record that were attached to its business records affidavit. National contends that such error prevented it from proving its damages from Ramirez's default on his student loan. Ramirez responds by pointing out that even assuming that the trial court abused its discretion by excluding portions of National's exhibit, the exclusion was harmless because, among other things, National's evidence was insufficient to support the other essential elements on which National had the burden of proof. See Tex. R. App. P. 44.1(a).

         Approximately forty-five days prior to trial, National filed its "Notice of Filing of Plaintiff's Affidavit and/or Other Trial Related Documents, " giving notice "to all parties that it intends to rely upon said documents to establish one or more elements of its claims and/or defenses." At the beginning of the bench trial, National sought to introduce the affidavit and business records as "Plaintiff's Exhibit 1, " stating that

[i]t contains the affidavit and verification of account of Plaintiff's custodian of records, note disclosure statement, credit agreement signed by the Defendants[5] with the applicable cosignor notices, pool supplement and deposit and sale agreement illustrating the chain of title to the loan, loan financial activity ...

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