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Sameera Arshad and Almorfa, LLC v. American Express Bank, FSB

Court of Appeals of Texas, Fourteenth District

July 25, 2019


          On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 2015-69785

          Panel consists of Chief Justice Frost and Justices Spain and Poissant.


          Kem Thompson Frost, Chief Justice.

         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 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.

         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 ...

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