CREDITOR MUST PROVE AGREEMENT ON SPECIFIC TERMS OF GOVERNING EXTENSION OF CREDIT
In a bench trial in which no findings of fact or conclusions
of law are requested by the parties or filed by the trial court, we imply all
findings of fact necessary to support the judgment. See, e.g., BMC Software
Belg., N.V. v. Marchand
, 83 S.W.3d 789, 795 (Tex. 2002). When the appellate
record includes the reporter's and clerk's records, these implied findings are
not conclusive and may be challenged for legal and factual sufficiency in the
appropriate appellate court. Id.
We review the sufficiency of the evidence
supporting the findings by applying the same standards that we use in reviewing
the legal or factual sufficiency of the evidence supporting jury findings.
Catalina v. Blasdel
, 881 S.W.2d 295, 297 (Tex. 1994); see Dittman v. Cerone
No. 13-11-00196-CV, 2013 WL 5970356, at *3 (Tex. App.-Corpus Christi Oct. 31,
2013, no pet.) (mem. op. on reh'g).
The test for legal sufficiency is "whether the evidence
at trial would enable reasonable and fair-minded people to reach the verdict
under review." City of Keller v. Wilson
, 168 S.W.3d 802, 827 (Tex. 2005).
In making this determination, we credit favorable evidence if a reasonable
fact-finder could, and disregard contrary evidence unless a reasonable
fact-finder could not. Id. So long as the evidence falls within the zone of
reasonable disagreement, we may not substitute our judgment for that of the
at 822. The trier of fact is the sole judge of the credibility
of the witnesses and the weight to give their testimony. Id
. at 819. Although we
consider the evidence in the light most favorable to the challenged findings,
indulging every reasonable inference that supports them, we may not disregard
evidence that allows only one inference. Id
. at 822.
To recover for breach of contract, a plaintiff must show:
(1) the existence of a valid contract; (2) the plaintiff performed or tendered
performance; (3) the defendant breached the terms of the contract; and (4) the
plaintiff suffered damages as a result of the defendant's breach. Woodhaven
Partners, Ltd. v. Shamoun & Norman, LLP
, 422 S.W.3d 821, 837 (Tex.
App.-Dallas 2014, no pet.); Williams v. Unifund CCR Partners Assignee of
264 S.W.3d 231, 235-36 (Tex. App.-Houston [1st Dist.] 2008, no pet.);
McLaughlin, Inc. v. Northstar Drilling Tech., Inc.
, 138 S.W.3d 24, 27 (Tex.
App.-San Antonio 2004, no pet.).
Thus, in this case, Pharia had the burden to
prove each element of a breach of contract claim at trial. See Preston State
Bank v. Jordan
, 692 S.W.2d 740, 744 (Tex. App.-Fort Worth 1985, no writ)
(affirming a take-nothing judgment in a suit to recover a credit card debt when
the bank failed to present evidence of the contract between the bank and the
credit card holder).
Parties form a binding contract when the following elements
are present: (1) an offer; (2) an acceptance in strict compliance with the
terms of the offer; (3) a meeting of the minds; (4) each party's consent to the
terms; and (5) the execution and delivery of the contract with the intent that
it be mutual and binding. Williams,
264 S.W.3d at 236. To be enforceable, a
contract must be sufficiently certain to enable a court to determine the rights
and responsibilities of the parties. T.O. Stanley Boot Co., Inc. v. Bank of El
, 847 S.W.2d 218, 221 (Tex. 1992). The material terms of a contract must be
agreed upon before a court can enforce the contract; the interest rate is a
material term. Id.
ASSIGNEE OF CREDIT CARD ISSUER FAILED TO PROVE THE CONTRACT TERMS
As noted, the only evidence offered by Pharia of a valid
contract was two pages reflecting a copy of a Bank of America cardholder
agreement in print so small that the copies are rendered illegible.
the "Affidavit of Indebtedness and Assignment" by Halpin states that
the balance due on Uribe's account is "$2,789.70 plus interest per the
terms of the agreement between the defendant and the original creditor at the
rate of 28.99% per annum," there is no evidence establishing Uribe's
specific obligations under the agreement or that Uribe agreed to the interest
rate asserted by Halpin.
Also, there is no evidence explaining how the
$2,789.70 balance stated by Halpin became the $4,285.31 balance claimed by
Pharia. The several account statements and several pages of text that appear to
be a card member agreement were in Spanish, and Pharia provided no translation
of the documents. See TEX. R. EVID. 1009(a) (providing that English
translations of foreign-language documents are admissible in certain
circumstances, not applicable here).
We conclude that, although there is
evidence of a credit-card agreement of some kind, there was no evidence proving
the terms of that agreement or Uribe's intent to be bound by a specific
agreement. See Williams
, 264 S.W.3d at 236 (holding evidence was insufficient
to establish the terms of a valid contract as a matter of law where creditor
failed to produce actual credit-card agreement or any other document that
established the agreed terms, including the applicable interest rate or method
for determining finance charges); Tully v. Citibank (S.D.), N.A
., 173 S.W.3d
212, 216-17 (Tex. App.-Texarkana 2005, no pet.) (holding evidence insufficient
to show interest rate charged was agreed on where the only evidence was the
rates specified in monthly statements); Jordan
, 692 S.W.2d at 744 (holding
evidence insufficient to establish a contract where creditor failed to
introduce contract or its terms and conditions); see also Hooper v. Generations
Cmty. Fed. Credit Union,
No. 04-12-00080-CV, 2013 WL 2645111, at *3 (Tex.
App.-San Antonio June 12, 2013, no pet.) (mem. op.) (reversing judgment for
creditor where cardholder agreement was not offered into evidence and there was
no evidence establishing debtor's specific obligations under an agreement);
Colvin v. Tex. Dow Employees Credit Union
, No. 01-11-00342-CV, 2012 WL 5544950,
at *6 (Tex. App.-Houston [1st Dist.] Nov. 15, 2012, no pet.) (mem. op.)
(reversing summary judgment for creditor where creditor failed to offer the
original agreement, monthly statements, or other evidence establishing how it
calculated its alleged damages); Martin v. Federated Capital Corp.
01-12-00116-CV, 2012 WL 4857835, at **2-3 (Tex. App.-Houston [1st Dist.] Oct.
11, 2012, no pet.) (mem. op.) (reversing summary judgment for creditor where
creditor's evidence failed to explain how it calculated its damages); Ayers v.
Target Nat'l Bank
, No. 14-11-00574-CV, 2012 WL 3043043, at **2-4 (Tex.
App.-Houston [14th Dist.] July 26, 2012, no pet.) (mem. op.) (reversing summary
judgment for creditor where creditor failed to present cardholder agreement and
a portion of the form language on the credit-card application was illegible and
form language was in Spanish); Wande v. Pharia
, No. 01-10-00481-CV, 2011 WL
3820774, at *5 (Tex. App.-Houston [1st Dist.] Aug. 25, 2011, no pet.) (mem.
op.) (reversing summary judgment for creditor where creditor presented the
cardholder agreement but important portions of the agreement were illegible,
including a section entitled "Finance Charges," and creditor presented
no evidence regarding the calculations it used to arrive at claimed outstanding
balance); Jaramillo v. Portfolio Acquisitions, LLC,
No. 14-08-00938-CV, 2010 WL
1197669, at **5-6 (Tex. App.-Houston [14th Dist.] March 30, 2010, no pet.)
(mem. op.) (holding evidence insufficient to establish a valid contract where
card member agreement was entered into evidence, but many of its material terms
were missing; "This court and its sister court have drawn a distinction
between cases where a card member agreement is entered into evidence and where
there is no card member agreement.").
Considering the evidence in the light most favorable to the
challenged finding, see City of Keller
, 168 S.W.3d at 822, we conclude that no
reasonable fact-finder could have found the evidence sufficient to establish
the existence of a valid contract. See Williams
, 264 S.W.3d at 236; T.O.
Stanley Boot Co.
, 847 S.W.2d at 221. The evidence was therefore legally
insufficient to establish the existence of a valid contract. We sustain Uribe's
Because we hold the evidence insufficient to establish the
existence of a valid contract, we reverse the trial court's judgment and render
judgment that Pharia take nothing.