Opinion issued May 3, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00382-CV
———————————
JEANNE KIRKPATRICK, Appellant
V.
LVNV FUNDING, LLC, Appellee
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Cause No. 2009-37721
MEMORANDUM OPINION
Appellant, Jeanne Kirkpatrick, challenges the trial court’s judgment, entered
after a bench trial, in favor of appellee, LVNV Funding, LLC (“LVNV”), in
LVNV’s suit against Kirkpatrick for breach of contract.
In three issues,
Kirkpatrick contends that the evidence is legally and factually insufficient to
support the trial court’s judgment and the trial court erred in admitting into
evidence LVNV’s business records affidavit and denying her motion for instructed
verdict.
We affirm.
Background
In its petition,1 LVNV, as the assignee of the “Original Creditor” Sears,
alleged that Kirkpatrick received and used, or authorized the use of, a Sears credit
card; she defaulted on her payment obligation; and the “entire balance” became
due. In support of its breach of contract claim, LVNV asserted that Sears made
Kirkpatrick an offer of credit; Kirpatrick’s use of the Sears card constituted her
acceptance of the Sears card member agreement; Sears had sent Kirkpatrick
monthly bills reflecting all charges, payments, and balances due; Kirkpatrick owed
a balance of $18,080.32; and Kirkpatrick had not satisfied LVNV’s demand for
payment.2
1
At the beginning of its petition, LVNV identified the defendant as “Jeanne
Kirkpatrick” with a specific social security number. As is explained below, the
trial court’s judgment is similarly limited by reference to “Jeanne Kirkpatrick”
with the same specific social security number.
2
LVNV also asserted causes of action against Kirkpatrick for money had and
received, account stated, and quantum meruit.
2
Kirkpatrick filed an answer generally denying LVNV’s allegations and
asserting multiple verified denials. She denied that the account “was true,” she had
agreed to pay for the services, she had entered into any transactions with LVNV,
and LVNV had presented the claim to her.
At the beginning of the trial, LVNV sought to admit into evidence the
business records of Tobie Griffin, a designated agent of LVNV. Attached to
Griffin’s affidavit were records pertaining to the Sears credit card allegedly issued
to Kirkpatrick. Kirkpatrick objected to the admission of this affidavit on the
ground that it was not based upon the personal knowledge of the previous account
owner’s records.
Kirkpatrick complained that although LVNV had identified
Sears as the “Original Creditor,” neither the affidavit nor the attached documents
reflect how “Citibank” had “acquired the Sears account.” The trial court overruled
Kirkpatrick’s objection and admitted into evidence the business records affidavit
and the attached documents.
In her affidavit, Griffin testified that she had personal knowledge of the
books and records of LVNV concerning its claim against Kirkpatrick. And Griffin
explained that she attached to her affidavit forty-eight pages of records, kept by
LVNV in the regular course of its business, which pertained to “Jeanne
Kirkpatrick” with the same specific social security number alleged in LVNV’s
3
petition. Griffin noted that this “was the name carried in [LVNV’s] books and
records” and it was in the regular course of its business for an employee with
personal knowledge of the act to make the records or to transmit the information,
the records were made at or near the time of the acts indicated in the records, the
records were originals or exact duplicates of those records maintained by LVNV
pertaining to the account of Jeanne Kirkpatrick, and, per LVNV’s petition, there
was an outstanding balance of $18,080.32.
The first document attached to Griffin’s business records affidavit is the
affidavit of Nikki Foster, an “authorized representative” of LVNV, who testified
that the sum of $18,080.32, with interest at 6% “per the terms and conditions,” was
due and owing and that “all just and lawful offsets, payments, and credits have
been allowed.” Foster referenced the account number that appears in the attached
documentation. The second attached document, an electronic record generated by
LVNV, reflects an outstanding account balance of $18,080.32, identifies Jeanne
Kirkpatrick as the account holder, identifies the account number and the last four
digits of the specific security number alleged by LVNV in its petition, and lists
Kirkpatrick’s specific address in Houston, Texas. The statement further identifies
the “current owner” of the account as LVNV, the “Original Creditor” on the
account as “Sears/Sears MasterCard Classic,” and the “Previous Owner” of the
4
account as “Citibank.” Finally, the document reflects an “LVNV Purchase Date”
of “6/02/2006” and an “Account Origination Date” as “7/01/1975.”
The next document attached to Griffin’s affidavit is the affidavit of C. Sue
Aaron, an employee of Citicorp Credit Services, Inc. (“CCSI”), who testified that
she had personal knowledge of and was familiar with Citibank’s records and her
testimony was based upon her personal knowledge and review of the records.
Aaron explained that CCSI is a subsidiary of Citibank (South Dakota) N.A. and
CCSI services credit card accounts for Citibank.
Such services included
maintaining records as they relate to credit cards owned by Citibank, including
accounts previously owned by Citibank USA, NA, which merged into Citibank in
October 2006. As custodian of records for Citibank, Aaron stated that records are
kept by CCSI on behalf of Citibank in the regular course of business and it was in
the regular course of business for an employee with knowledge to make the
records. Aaron noted that CCSI, in the regular course of business, provided credit
card processing services, including “causing to be sent to customers periodic
billing statements reflecting true and correct activities on the customers’ respective
accounts.” Aaron further noted that Citibank’s records indicated that an account
was opened on “7/1/1975” “in the name of Jeanne Kirkpatrick” with the same
specific social security number listed in LVNV’s petition, Citibank’s records
showed that when the account was sold on “6/2/2006” there was a balance of
5
$18,080.32, and the last payment that was made on the account was made on
“11/13/2005.”
Aaron stated that Kirkpatrick’s account had been sold by Citibank
to Sherman Originator LLC (“Sherman”) pursuant to a purchase and sale
agreement.
The next group of documents attached to Griffin’s affidavit includes twentyone pages of statements identified as “Sears Statement Transaction” “Reference
Reports.” All of these statements reflect a “Report Date” of October 2006 and a
“Statement Date” including various dates from the years 2004, 2005, 2006. These
statements set forth the same account number referenced in the affidavits and refer
to “Jeanne E. Kirkpatrick” as the debtor. These statements also reflect various
charges and payments, corresponding dates, and account balances. Some of the
statements also include the remark, “Thank you,” in acknowledgement of a
payment made by the debtor. Although the statements themselves do not include
an address or any other indication on their face reflecting if and when they were
sent, Aaron, as noted above, testified in her affidavit that Citibank sent to their
customers “periodic billing statements.”
The next document attached to Griffin’s affidavit is a Bill of Sale, which
states that Citibank assigned to Sherman “Accounts described in Section 1.2 of the
Agreement.”
The separate agreement referenced in this document was not
included in the documents attached to the business records affidavit. The next
6
document attached to Griffin’s affidavit is a “Sale and Assignment,” which states
that Sherman assigned to LVNV certain “Receivable Assets” as defined in the
“Agreement” and identified on the “Receivable File (Exhibit A).” Again, the
separate agreement referenced in this document is not attached to Griffin’s
affidavit. However, there is a document entitled “Exhibit A Receivables File”
attached, and this document includes a series of twenty-six separate four digit
numbers. There was no evidence introduced to explain the meaning of these
numbers.
The next set of documents attached to Griffin’s affidavit is fourteen pages of
computer printouts, each containing a single row of electronic information.
Among the electronic entries included in these documents is a reference to an
account number that is consistent with the number listed in the “Sears Statement
Transaction” “Reference Reports.” These records identify the “debtor” as Jeanne
Kirkpatrick, a debtor’s address that matches the address listed in LVNV’s
electronic records attached to Giffin’s affidavit, and a “debtor’s ssn,” which
matches the last three digits of the social security number alleged in LVNV’s
petition.
Additionally, there is a reference to an account opening date of
“07011975,” a “charge off amount” of $18,080.32, a last payment date of
“11132005,” a last purchase date of “20050909,” a current balance of $18,080.32,
7
a date of original delinquency of “11232005,” an “OfficerName” of “Sears
MasterCard Classic,” and a “Buyers Code” of “SHMC.”
The next document attached to Griffin’s affidavit is her second affidavit, in
which she testified that she was an authorized representative of Sherman, from
which LVNV acquired Jeanne Kirkpatrick’s account.
The final document attached to Griffin’s affidavit is a document titled “Sears
National Bank Sears MasterCard Card Account Cardholder Account and Security
Agreement.” This document consists of multiple pages and sets forth terms and
conditions for an account.3
LVNV’s counsel then testified as to her attorney’s fees,4 to which
Kirkpatrick objected on the ground that LVNV had failed to present its claim. In
response, LVNV’s counsel presented a demand letter that she stated was sent to
3
Although LVNV did not offer any testimony or evidence to explain the
information contained in these documents, counsel for LVNV, before testifying to
her attorney’s fees, sought to provide an explanation. She stated that the
documents attached to the business records affidavit included (1) “an affidavit
from Citibank showing that they are the original creditor, showing the account
originated with them, showing the amount due, and that it was transferred to
Sherman,” (2) a “plethora of credit card statements,” (3) a bill of sale showing
“how Citibank transferred the account to Sherman,” (4) a document showing that
Sherman transferred the account to LVNV, (5) a document showing “the list of
accounts that were transferred because accounts are transferred in bundles,” (6) a
series of documents (presumably the fourteen pages of single-row electronic
entries that we reference above) that are “data lines transfer of the account,” and
(7) the terms and conditions of a credit card.
4
Although counsel cited multiple tasks for which she was seeking to recover fees,
her testimony did not reference preparing and sending a demand letter.
8
Kirkpatrick. This demand letter, written on the letterhead of counsel’s law firm
“Hull & Associates P.C.,” contains a signature block for “James N. Hull” and a
recipient’s address block for “Jeanne Kirkpatrick,” which matches the address
listed in LVNV’s electronic records attached to Giffin’s affidavit. It also identifies
the “Previous Creditor” as Sears and the “Current Creditor” as LVNV, and it states
that LVNV purchased the account from the “previous creditor.”
Kirkpatrick
objected to the admission of the demand letter, noting, among other things, that it
was not signed. She also complained that it did not include any reference to
having been sent by certified mail, and she asserted that there is no evidence that
she had received it. LVNV’s counsel responded, “I believe the address on the
demand letter is the same address [Kirkpatrick] responded to in interrogatories.”5
Following this exchange, LVNV rested its case without introducing any further
evidence.
Kirkpatrick requested an instructed verdict, which the trial court denied.6
Kirkpatrick then testified that her name, in 1975, was “Jeanne Keller” and she did
5
These interrogatories were not introduced into evidence. And, although counsel
argued that the demand letter had been sent, LVNV did not offer any testimony
that the letter was actually sent.
6
Kirkpatrick contended that LVNV had not proven that she was “the one and the
same [person] as set forth in the business records affidavit.” The trial court
remarked, “Well, she may not be Jeanne Kirkpatrick, but [LVNV] has proved [its]
case regarding a Jeanne Kirkpatrick, so it’s denied.”
9
not become “Jeanne Kirkpatrick” until she married her husband in 1978.7 She
noted that she had divorced Mr. Kirkpatrick in 2006. She denied that she was the
holder of the account, stating, “I have never seen this account.” When asked
whether she had ever been the holder of a Sears MasterCard, Kirkpatrick stated,
“Not that I can ever remember.” When asked to look through the various charges
and payments on the statements, she stated that she did not make the charges or
payments, did not know if anyone had made payments on her behalf, and did not
know whether her husband had made any charges. She also denied ever having
seen a demand letter from LVNV.
On cross-examination, Kirkpatrick stated that she had one credit card, which
was a Visa, but she agreed that she had previously shopped at Sears. When asked
whether she had ever dined at Macaroni Grill and Steak and Ale, charges for which
appeared on the statements, Kirkpatrick stated that she had. When asked whether
she had shopped at “the big liquor store,” Kirkpatrick stated she had not. When
asked how she had paid for items when she shopped at Sears, Kirkpatrick stated
that it had been a “long time” since she had been to Sears but that she used “check
or cash usually.” She further stated, “I may have charged something at Sears but I
don’t ever remember doing it. . . . I had a Sears card that you could charge on but
7
When asked about when she married her husband, the record reflects that she
stated “1975—‘8,” and, when asked again, she repeated 1978.
10
not a MasterCard from Sears.” Following this answer, LNVN’s counsel asked the
trial court “to take judicial notice that [Kirkpatrick] has admitted that she had a
Sears card that she charged on.” Kirkpatrick then stated, “I have never said I
didn’t have a Sears credit card. I just didn’t have their —a Sears charge card. You
can’t use those at Macaroni Grill, can you?” Finally, Kirkpatrick provided her
“current address,” which matches the address listed in LVNV’s electronic records
attached to Giffin’s affidavit.
On re-direct examination, Kirkpatrick stated that she had no knowledge of
receiving any statements from the Sears MasterCard or the Citibank MasterCard
referenced in the lawsuit at her home address. Kirkpatrick also stated that, despite
having asked for it, LVNV was not able to produce a copy of the original
agreement between her and Sears, there are no documents showing that she had
ever applied for the account, and there are no originals or copies of actual
statements sent to her in the case.
The trial court entered judgment in favor of LVNV against “Jeanne
Kirkpatrick” with the same specific social security number alleged in LVNV’s
petition.
It awarded LVNV $18,080.32, plus interest at 6%, and $5,000 in
attorney’s fees. In its findings of fact and conclusions of law, the trial court found
that Kirkpatrick and LVNV entered into an account agreement, Kirkpatrick
purchased goods and services on the account, Kirkpatrick promised to pay for the
11
account, and Kirkpatrick breached the account agreement by not paying the
balance of $18,080.32.
The trial court concluded that Kirkpatrick was also
responsible for interest and attorney’s fees and LVNV had standing to sue for
breach of the account agreement.
Legal and Factual Sufficiency
In her first issue, Kirkpatrick argues that the evidence is legally and factually
insufficient to support the trial court’s judgment and its awards of actual damages
and attorney’s fees because there is no evidence of a valid existing agreement
between her and LVNV, she breached the agreement, LVNV tendered
performance, LVNV sustained damages, or LVNV presented the claim to her.
Kirkpatrick asserts that she presented the trial court with “irrefutable evidence”
that she did not enter into any agreement with Sears. Kirkpatrick also complains
that, in the business records affidavit of Tobie Griffin and the attached documents,
there “is no mention of how Citibank acquired the account from Sears.”
In an appeal of a judgment rendered after a nonjury trial, a trial court’s
findings of fact have the same weight as a jury’s verdict, and we review the legal
and factual sufficiency of the evidence used to support them just as we would
review a jury’s findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).
In conducting a legal-sufficiency review of the evidence, we must consider all of
the evidence in the light most favorable to the verdict and indulge every reasonable
12
inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822
(Tex. 2005).
In determining whether legally-sufficient evidence supports the
finding under review, we must consider evidence favorable to the finding, if a
reasonable fact finder could consider it, and disregard evidence contrary to the
finding, unless a reasonable fact finder could not disregard it. Id. at 827. When a
party attacks the legal sufficiency of an adverse finding on which it did not have
the burden of proof, it must demonstrate that there is no evidence to support the
adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983); Bellino v.
Comm’n for Lawyer Discipline, 124 S.W.3d 380, 385 (Tex. App.—Dallas 2003,
pet. denied). We will sustain a legal-sufficiency or “no evidence” challenge if the
record shows one of the following: (1) a complete absence of evidence of a vital
fact, (2) rules of law or evidence bar the court from giving weight to the only
evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact
is no more than a scintilla, or (4) the evidence establishes conclusively the opposite
of the vital fact. City of Keller, 168 S.W.3d at 810.
In reviewing a factual-sufficiency challenge, we consider and weigh all of
the evidence supporting and contradicting the challenged finding and set aside the
finding only if the evidence is so weak as to make the finding clearly wrong and
manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When a party
attacks the factual sufficiency of an adverse finding on an issue on which it did not
13
have the burden of proof at trial, it must show that there is insufficient evidence to
support the adverse finding. Vongontard v. Tippit, 137 S.W.3d 109, 112 (Tex.
App.—Houston [1st Dist] 2004, no pet.).
We review a trial court’s conclusions of law de novo, and we will uphold the
conclusions if the judgment can be sustained on any legal theory supported by the
evidence. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.
2002). Although a trial court’s conclusions of law may not be challenged for
factual sufficiency, we may review the legal conclusions drawn from the facts to
determine whether the conclusions are correct. BMC Software Belgium, N.V., 83
S.W.3d at 794. If we determine that a conclusion of law is erroneous, but that the
trial court nevertheless rendered the proper judgment, the error does not require
reversal. BMC Software Belgium, N.V., 83 S.W.3d at 794. Finally, we note that
the trial court acts as fact-finder in a bench trial and is the sole judge of the
credibility of witnesses. HTS Servs., Inc. v. Hallwood Realty Partners, L.P., 190
S.W.3d 108, 111 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
Breach of Contract
To recover on its breach of contract claim against Kirkpatrick, LVNV had to
establish that (1) a valid contract existed; (2) it performed or tendered
performance; (3) Kirkpatrick breached the contract; and (4) LVNV was damaged
as a result of Kirkpatrick’s breach. See Winchek v. Am. Express Travel Related
14
Servs. Co., 232 S.W.3d 197, 202 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
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)
meeting of the minds; (4) each party’s consent to the terms; and (5) execution and
delivery of the contract with the intent that it be mutual and binding. See Winchek,
232 S.W.3d at 202.
Here, LVNV presented evidence that, in 1975, Citibank extended an offer of
credit to “Jeanne Kirkpatrick” with a specific social security number, Kirkpatrick
used the card by incurring charges and making payments, Kirkpatrick was
provided statements reflecting her charges, payments, and balances, and
Kirkpatrick defaulted by failing to make payments. See Winchek, 232 S.W.3d at
202 (holding that “conduct in using the card and making payments on the account
for the purchases and charges reflected on [defendant’s] monthly billing statements
manifested her intent that the contract become effective”).
In regard to the
discrepancy regarding the identity of the original creditor, although LVNV
certainly could have offered additional testimony explaining the documents
attached to Griffin’s business records affidavit, the trial court could have
reasonably concluded that the actual original owner of the account was Citibank.
LVNV presented affidavit and documentary testimony demonstrating that Citibank
15
originated the account in 1975, assigned the account to Sherman, and Sherman
then assigned the account to LVNV.
In sum, although Kirkpatrick denied being the account holder, the record
reflects that she did have the same name as the debtor, and she agreed that she
lived at the same address of the debtor identified in the documents that were
attached to Griffin’s business records affidavit. In addition, LVNV’s business
records affirmatively show that Kirkpatrick, who LVNV more specifically
identified with the last four digits of her social security number, had an account
with Citibank and had purchased goods and services on that account. The monthly
statements show Kirkpatrick’s name, reflect the specific charges, payments, and
balances, and identify the same account number that is referred to in all of the
supporting affidavits and documents. We conclude that LVNV presented some
evidence that Kirkpatrick had an account with Citibank and owed an outstanding
balance on the account.
Viewing the evidence in the light most favorable to the trial court’s
judgment, we hold that the evidence is legally sufficient to support the trial court’s
findings that Kirkpatrick and Citibank entered into an account agreement;
Kirkpatrick purchased goods and services upon her account; by failing to pay her
outstanding balance, she breached the account agreement; and LVNV, as the
assignee of the account, was damaged in the amount of $18,080.32. Moreover,
16
after considering all of the evidence in a neutral light, we hold that the evidence is
factually sufficient to support the trial court’s findings that Kirkpatrick breached
her contract by failing to pay her account and damaged LVNV in the amount of
$18,080.32.
Presentment
A party may recover reasonable attorney’s fees if its claim is for “an oral or
written contract.” TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (Vernon 2008).
To recover attorney’s fees under section 38.001(8), a claimant must: (1) be
represented by an attorney; (2) present the claim to the opposing party or to a duly
authorized agent of the opposing party; and (3) show that payment was not
tendered before the expiration of the 30th day after the claim was presented. Id. §
38.002(1)–(3) (Vernon 2008). Presentment of a claim is required to allow the
debtor to pay the claim before incurring an obligation to pay attorney’s fees.
Panizo v. Young Men’s Christian Ass’n of the Greater Houston Area, 938 S.W.2d
163, 168 (Tex. App.—Houston [1st Dist.] 1996, no writ).
While the filing of a lawsuit does not, by itself, constitute presentment, no
particular form of presentment is required—it may be written or oral. Id. “[A]ll
that is necessary is that a party shows that its assertion of a debt or claim and a
request for compliance was made to the opposing party, and the opposing party
refused to pay the claim.” Standard Constructors, Inc. v. Chevron Chem. Co., 101
17
S.W.3d 619, 627 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).
Nonpayment of a bill or invoice for thirty days has been held to satisfy the
presentment requirement. See De Los Santos v. Sw. Tex. Methodist Hosp., 802
S.W.2d 749, 757 (Tex. App.—San Antonio 1990, no writ), overruled on other
grounds, 876 S.W.2d 314 (Tex. 1994). Here, the affidavit of Aaron and the
account statements contained in the record provided some evidence that Citibank
sent Kirkpatrick billing statements requesting payment for outstanding amounts.
Moreover, although Kirkpatrick denied receiving it, Citibank introduced into
evidence a copy of a demand letter that was addressed to Kirkpatrick. On crossexamination, Kirkpatrick agreed that she lived at this address. Accordingly, we
hold that the evidence is legally and factually sufficient to support the trial court’s
finding that LVNV presented its claim to Kirkpatrick. See City of Keller, 168
S.W.3d at 819; Cain, 709 S.W.2d at 176.
We overrule Kirkpatrick’s first issue.
Business Records Affidavit
In her second issue, Kirkpatrick argues that the trial court erred in admitting
into evidence LVNV’s business records affidavit because there is no evidence that
LVNV or Sherman “relied upon the accuracy of the Sears account,” no evidence as
to how Citicorp or Citibank “acquired the Sears account,” and “the records
18
attached to the affidavit show that the records are not trustworthy based on
inconsistent records within the same affidavit.”
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A document
authored or created by a third party may be admissible as business records of a
different business if: (a) the document is incorporated and kept in the course of the
testifying witness’s business; (b) that business typically relies upon the accuracy of
the contents of the document; and (c) the circumstances otherwise indicate the
trustworthiness of the document. Simien v. Unifund CCR Partners, 321 S.W.3d
235, 240–41 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing Bell v. State,
176 S.W.3d 90, 92 (Tex. App.—Houston [1st Dist.] 2004, no pet.)); Harris v.
State, 846 S.W.2d 960, 963–64 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d).
Here, Tobie Griffin testified that the records were kept by LVNV in the
regular course of its business and she had personal knowledge of the books and
records concerning LVNV’s claim against Kirkpatrick.
Thus, LVNV presented
evidence that the documents attached to Griffin’s affidavit were incorporated into
and kept in the course of LVNV’s business. See id. Moreover, given Griffin’s
affidavit testimony that she had personal knowledge of the records retained by
LVNV pertaining to Kirkpatrick’s account, and Aaron’s supporting affidavit
testimony, LVNV presented evidence that it relied upon the accuracy of the
19
contents of the documents it maintained. See id. Finally, because Citibank “must
keep careful records of its customer’s credit card debt,” and because “failure to
keep accurate records could result in criminal or civil penalties,” the circumstances
indicate the trustworthiness of the documents attached to Griffin’s affidavit. See
id. (citing Harris, 846 S.W.2d at 963).
In regard to Kirkpatrick’s primary
complaint that there is no evidence demonstrating an assignment from Sears to
Citibank, the trial court could have reasonably found that Aaron’s affidavit
constituted some evidence that Citibank, not Sears, was actually the original owner
of the account. We conclude that the records attached to Griffin’s affidavit, which
were authored or created by a third party other than LVNV, were admissible as
business records. Accordingly, we hold that the trial court did not err in admitting
into evidence the business records affidavit of Griffin and the attached documents.
We overrule Kirkpatrick’s second issue.
Instructed Verdict
In her third issue, Kirkpatrick argues that the trial court erred in denying her
motion for instructed verdict because there is legally insufficient evidence to
support a finding that she had an agreement with LVNV, she breached the
agreement, LVNV performed, or LVNV sustained damages.
20
Having held that the evidence is legally sufficient evidence to support the
trial court’s judgment in favor of LVNV on its claim for breach of contract, we
overrule Kirkpatrick’s third issue.8
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Massengale, and Huddle.
8
Kirkpatrick waived any error in the denial of her motion for directed verdict by
introducing her own evidence after LVNV had rested and not reurging her motion
at the close of all of the evidence. See Shindler v. Marr & Assoc., 695 S.W.2d
699, 706 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.). However,
because she was not required to preserve her legal sufficiency challenge after the
bench trial, we have addressed Kirkpatrick’s legal sufficiency challenge. See TEX.
R. APP. P. 33.1(d) (“In a nonjury case, a complaint regarding the legal or factual
sufficiency of the evidence . . . may be made for the first time on appeal in the
complaining party’s brief.”).
21
