Court of Appeals of Texas, Second District, Fort Worth
COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY TRIAL COURT NO.
LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.
MEMORANDUM OPINION 
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
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,  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.
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
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.
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.). 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).
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).
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 with the applicable cosignor notices, pool
supplement and deposit and sale agreement illustrating the
chain of title to the loan, loan financial activity ...