OLIPHANT FINANCIAL, LLC, Appellant v. MICHAEL R. PATTON AND TERRENCE L. EDGE A/K/A TERRENCE LANE EDGE, Appellees

AFFIRMED; Opinion Filed March 17 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01731-CV
............................
OLIPHANT FINANCIAL, LLC, Appellant
V.
MICHAEL R. PATTON AND TERRENCE L. EDGE A/K/A
TERRENCE LANE EDGE, Appellees
.............................................................
On Appeal from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. CC-07-09945-A
.............................................................
MEMORANDUM OPINION
Before Justices Moseley, FitzGerald, and Lang-Miers
Opinion By Justice Moseley
        Oliphant Financial, LLC appeals the dismissal for want of prosecution of its breach of contract suit against Michael R. Patton and Terrence L. Edge a/k/a Terrence Lane Edge. In a single issue, Oliphant asserts the trial court erred when it dismissed this case for want of prosecution, arguing it was entitled to a default judgment on liquidated damages and attorney's fees because the judgment was supported by the pleadings and attached documents and by deemed admissions. Neither Patton nor Edge answered or filed a brief in this Court.
        The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. Rs. App. P. 47.2(a), 47.4. For the reasons set forth below, we affirm the trial court's dismissal order.
I. BACKGROUND
        Oliphant sued Patton and Edge to collect an unpaid credit card debt, alleging it had acquired the unpaid account from Household Bank. In its prayer, Oliphant sought judgment against them jointly and severally “in the amount of at least $12,316.73, with interest thereon at the rate of 6% per annum from September 30, 2003 until paid, costs of court, reasonable attorneys' fees as herein above alleged, and interest thereon in accordance with V.T.C.A., Finance Code § 304, and for such further relief, to which Plaintiff may be entitled.” The petition included requests for disclosure and for admissions. Affidavits and a statement of account showing information on Patton and Edge's joint account were attached to the petition. The statement of account identified Patton and Edge and their home address. The bank's credit agreement was also attached to the petition.
        On July 6, 2007 (the day after suit was filed), the trial court wrote Oliphant advising it that, pursuant to rule of civil procedure 165a, the case was set for dismissal on October 5, 2007. The letter stated, in pertinent part, that if no answer had been filed, or an answer was insufficient to place any fact in issue, Oliphant was expected to have moved for and have heard a summary judgment or proved up a default judgment before that date, and that Oliphant's failure to have done so would result in the dismissal of the case on that date. The letter also stated that live witnesses would not be required unless the default prove-up was for an unliquidated claim, and that liquidated claims and attorney's fees could be proved up by affidavit submitted with a form of judgment.
        A return of service shows that Edge was served with process. Neither Patton nor Edge answered or appeared.
        On October 8, 2007, Oliphant moved for default judgment on its “liquidated claim based upon an agreement and resulting account as indicated” in its petition and on its request for attorney's fees. The motion was supported by affidavits and exhibits showing that Patton and Edge had bought a jet ski and a related item on the Household Bank account; an affidavit on deemed admissions; an affidavit supporting attorney's fees; and non-military affidavits.
        Instead of expressly denying the motion for default judgment, the trial court signed an Order to Amend Petition on October 14, 2007, ordering Oliphant to amend its original petition, reciting that the default judgment was being returned unsigned because of “one or more” specifically identified defects in Oliphant's petition on file. The purported deficiencies were (quoting):
 
Petition does not give fair notice of claim against Defendant;
 
 
        Damages cannot be accurately calculated, no written instrument attached to petition;
 
 
Other: Affidavits are conclusory re: damages. Petition does not articulate how damages were calculated[.]
 
(Handwritten text is in italics.) The trial court ordered Oliphant to amend its original petition to correct the listed deficiencies and serve the amended petition within thirty days of the order and cautioned that failure to amend and serve the amended petition “in a timely manner” would result in dismissal of the case for want of prosecution on or after the thirty-first day after the order was signed.
        Oliphant did not file an amended petition, but, on November 7, 2007, it filed a Trial Brief in Support of Judgment. Oliphant argued among other things that it was entitled to a default judgment because it sought liquidated damages that were proved up by written instruments, and that deemed admissions supported all elements of its breach of contract claim.
        On November 16, 2007, the trial court advised Oliphant that the default judgment was being returned unsigned. The letter re-stated the first two deficiencies noted in the October 14 order to amend. A third deficiency was noted as “other”: “Affidavits are conclusory as to damages.”         On November 16, 2007, the trial court signed an order dismissing the case, stating two reasons: (1) “[f]ailure to take action after notice of intent to dismiss for want of prosecution. (IN ACCORDANCE WITH RULE 165A LETTER)”; and (2) want of prosecution. Subsequently, Oliphant filed a motion to reinstate and a motion for default judgment. The record does not show that either was presented to or ruled on by the trial court. This appeal followed.
II. ENTITLEMENT TO JUDGMENT
        The trial court's November 16, 2007 letter identified certain purported deficiencies in Oliphant's pending motion for default judgment, as set out above, and impliedly denied it. On appeal, Oliphant argues it was entitled to default judgment on all elements of its breach of contract claim, including liquidated damages, and attorney's fees.
A.
 
Appellee Patton
 
        We cannot conclude that the trial court abused its discretion by failing to grant Oliphant a default judgment against Patton in the absence of proof that he was served with process. See Unifund CCR Partners v. Jaeger, No. 05-07-01444-CV, 2009 WL 638212, at *1 (Tex. App.-Dallas Mar. 13, 2009, no pet.) (mem. op.) (“The law requires proof of service before a plaintiff may take judgment by default.”). Our record contains no such proof. Thus, with respect to Patton, we resolve Oliphant's sole issue against it.
B.
 
Standard of Review
 
        “At any time after a defendant is required to answer, the plaintiff may take a default judgment if the defendant has not previously filed an answer, and the citation with the officer's return has been on file with the clerk for ten days.” Aguilar v. Livingston, 154 S.W.3d 832, 834 (Tex. App.-Houston [14th Dist.] 2005, no pet.). See Tex. R. Civ. P. 239; see also Tex. R. Civ. P. 107. We consider a trial court's denial of a motion for default judgment when the denial is challenged in an appeal from a final judgment or order. See Crown Asset Mgmt., L.L.C. v. Loring, 294 S.W.3d 841, 843 (Tex. App.-Dallas 2009, pet. denied) (en banc); Aguilar, 154 S.W.3d at 833; see also Tex. R. App. P. 33.1 (trial court ruling may be express or implicit). Our standard of review is abuse of discretion. Resurgence Fin., LLC v. Taylor, 295 S.W.3d 429, 432 (Tex. App.-Dallas 2009, pet. filed).
A.
 
Applicable Law
 
        A default judgment is properly granted if: (1) the plaintiff files a petition that states a cause of action; (2) the petition invokes the trial court's jurisdiction; (3) the petition gives fair notice to the defendant; and (4) the petition does not disclose any invalidity of the claim on its face. Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494 (Tex. 1988). See Tex. Rs. Civ. P. 45, 47. “The purpose of the fair notice requirement is to provide the opposing party with sufficient information to enable him to prepare a defense.” Paramount Pipe & Supply Co., 749 S.W.2d at 494.         The elements of a breach of contract claim are: (1) the existence of a valid contract; (2) performance or tender of performance; (3) breach by the defendant; and (4) damages resulting from the breach. Hussong v. Schwan's Sales Enters., Inc., 896 S.W.2d 320, 326 (Tex. App.-Houston [1st Dist.] 1995, no writ). In addition to the amount of a valid claim and costs, a plaintiff may also recover reasonable attorney's fees if the claim is for a written contract. Tex. Civ. Prac. & Rem. Code Ann. §§ 38.001(8), .002 (providing for recovery procedure) (Vernon 2008).
        A defendant who defaults admits all allegations of facts except unliquidated damages. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Stoner v. Thompson, 578 S.W.2d 679, 684-85 (Tex. 1979); First Nat'l Bank of Irving v. Shockley, 663 S.W.2d 685, 689 (Tex. App.-Corpus Christi 1983, no writ). If damages are unliquidated or not proved by an instrument in writing, the court must hear evidence as to damages before it may grant a default judgment. Tex. R. Civ. P. 243. When a plaintiff's claim is liquidated and proven by an instrument in writing, the plaintiff may be awarded damages without the necessity of a hearing or the presentation of evidence. Burrows v. Bowden, 564 S.W.2d 474, 475 (Tex. Civ. App.-Corpus Christ 1978, no writ); Tex. R. Civ. P. 241. A claim is liquidated if the amount of damages caused by the defendant can be accurately calculated by the court from: (1) the factual, as opposed to conclusory, allegations in the petition, and (2) an instrument in writing. Freeman v. Leasing Assocs., Inc., 503 S.W.2d 406, 408 (Tex. Civ. App.-Houston [14th Dist.] 1973, no writ).
B.
 
Discussion
 
 
 
1.
 
Fair Notice
 
        In its November 16, 2007 letter, the trial court identified one purported deficiency related to pleading matters: no fair notice of the claim. Oliphant contends it pleaded a breach of contract claim and the pleadings give fair notice of its claim to appellees. We agree with Oliphant.
        Oliphant alleged that Edge entered a revolving credit agreement with Household Bank and opened a specific account with the bank. Oliphant attached the agreement to its petition. Oliphant alleged that Edge bought goods in accordance with the agreement but failed to pay the account. Oliphant attached copies of the sales receipts to its petition. Oliphant further alleged that it purchased the account, was the owner and holder of the account, was the party entitled to sue thereunder, and had been damaged by Edge's failure to pay his obligation under the agreement. We conclude Oliphant's petition gives fair notice of a breach of contract claim.   See Footnote 1  See Paramount Pipe & Supply Co., 749 S.W.2d at 494; Oliphant Fin., LLC v. Galaviz, 299 S.W.3d 829, 835 (Tex. App.-Dallas 2009, no pet.); Hussong, 896 S.W.2d at 326. Further, by failing to answer, Edge admitted these allegations. See Heine, 835 S.W.2d at 83; Stoner, 578 S.W.2d at 684-85.          2.
 
Liquidated Damages
 
        In its November 16, 2007 letter, the trial court also identified purported deficiencies related to the damages element of Oliphant's breach of contract claim. Oliphant contends the pleadings and attached documents showed it was entitled to a default judgment on liquidated damages because the damages can be calculated from the factual allegations in its petition and the written instruments. Oliphant also argues that deemed admissions conclusively proved its case.
        Attached to the petition was the affidavit of Sherri L. Wright, a “Legal Outsource Co- Manager” of Oliphant. Wright stated she was familiar with the business books and records of Household Bank's outstanding accounts; Household Bank maintained computerized account records for customers who had established a credit card account; and she had personally reviewed Household Bank's records as they related to Edge's credit card account. Further, Wright said that:
 
the amount attested to by [a]ffiant as the balance owed to [Oliphant] from [Edge] accurately reflects the balance owed to [Oliphant] less any payments and/or credits, if any, on said balance acquired by [Oliphant] from the seller, but not including any post charge-off interest owed by [Edge] to [Oliphant] from the date of acquisition by [Oliphant] which amount is within the knowledge of affiant just and true, and that it is due and that all just and lawful offsets, payments and credits have been allowed.
 
She also stated the bank's credit account number for Edge, Oliphant's customer account number, and the “charge off balance” and “current balance” as $12,316.73.
        Attached as Exhibit A to Wright's affidavit is Oliphant's statement of account for Edge as of the report date of June 12, 2007. It says the account was opened by Household Bank on August 9, 2002; the date of the last payment was July 30, 2003, in the amount of $150; the charge-off date was September 30, 2003; the acquisition balance was $12,316.73; and the “Acq Interest Rate” is “6.00%.” The second part of the statement is the “payment history.” It notes Oliphant acquired the balance on October 21, 2003; there were no payments or amounts credited; and the remaining balance was $12,316.73.         As to the damages, the deemed admissions established that Edge owed Oliphant $12,316.73 on the account made the basis of the suit and that the agreed contractual interest rate on the account was 6%.
        Also attached to the petition (as well as the motion for default judgment) was Household Bank's credit agreement stating that the standard annual percentage interest rate was 17.9%, but if the purchaser failed to make two consecutive total minimum payments due and was thirty days past due, the default rate applied. The annual default rate was 21.9%, corresponding to a daily default rate of .06%.
        In its motion for default judgment Oliphant requested judgment on the debt owed in the amount of $12,316.73 as liquidated damages. Attached to the motion for default judgment was another affidavit from Wright that included the statement:
 
        I am familiar with the records provided with the above-referenced account for [Patton and Edge]. Said records reflect that as of JUNE 17, 2007, there was a balance owing of $12,316.73. The records reflect the last payment made on the account was JULY 30, 2003.
 
Attached to this second Wright affidavit was another Oliphant statement of account for Edge as of the report date of September 26, 2007. This statement of account differs from the one described above: it showed some court costs deducted after the balance was acquired, and the “Acq Interest Rate” as “0.06%.” But it shows the same “remaining balance” of $12,316.73.
         Oliphant argues it was entitled to a default judgment because the documents submitted proved its liquidated damages and its affidavits were not conclusory. See, e.g., Aavid Thermal Techs. of Tex. v. Irving Indep. Sch. Dist., 68 S.W.3d 707, 712 (Tex. App.-Dallas 2001, no pet.) (in suit for delinquent ad valorem taxes, damages were liquidated and proved by instruments in writing, namely: certified copies of tax rolls and tax statements from which the taxes could be calculated). However, although the affidavits are based on facts, those facts are conflicting as to the rate of interest applied to the account. Specifically, the credit agreement provides that, as in this case, if the account was not “kept current,” the default annual interest rate of 21.9% applied, which was .06% per day. This 21.9% interest rate agrees with the Oliphant statement of account that is attached to Wright's affidavit submitted with Oliphant's motion for default judgment, which stated the interest rate as “.0.06%.” But that evidence conflicts with other evidence, specifically, the Oliphant statement of account that is attached to Wright's first affidavit, submitted with the original petition, and the deemed admission concerning the interest rate, both of which state the interest rate as 6%.
        Moreover, nothing in the record shows whether the damage amount of $12,316.73 was computed pursuant to the 21.9% or the 6% annual rate. There is no payment history for the Household Bank account; no break-down of principal and interest amounts due and charges or fees applied by Household Bank; and no record of when the default rate applied, resulting in the balance acquired by Oliphant and requested in this suit. Thus, there is some support in the record for the first part of the trial court's statement that “damages cannot be accurately calculated, no written instrument attached to petition.” See Taylor, 295 S.W.3d at 434 (in addition to failure to specify compound or simple interest computation, interest rates specified in credit card statements and agreement conflict). We conclude that Oliphant failed to prove its damages were liquidated, thus failing to prove its entitlement to default judgment. Accordingly, we further conclude the trial court did not abuse its discretion by impliedly denying Oliphant's motion for default judgment against Edge. See id.; see also Freeman, 503 S.W.2d at 408.
        Oliphant does not argue that the balance acquired from Household Bank, which is the amount it seeks, was computed from the higher or lower interest rate. Nor does Oliphant acknowledge the conflict in the evidence as to the interest rate that applies here or plead for either an alternative lesser amount or seek a remand to prove unliquidated damages. Its sole argument is that its evidence proves liquidated damages of a certain amount, and the sole relief sought is rendition. We resolve Oliphant's sole issue against it as it relates to Edge.
        The trial court's July 6, 2007 dismissal notice advised Oliphant that its case would be dismissed if no answer were filed and Oliphant failed to have proved up a default judgment before the dismissal date. Under these circumstances, we conclude the trial court did not abuse its discretion by dismissing this case for want of prosecution. See Taylor, 295 S.W.3d at 343 (citing Loring, 294 S.W.3d at 844); Collins Fin. Servs., Inc. v. Guerrero, No. 05-07-01732, 2009 WL 3032479, at *3 (Tex. App.-Dallas Sept. 24, 2009, pet. filed) (mem. op.); see also Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999) (common law vests trial court with inherent power to dismiss independently of rules of civil procedure when plaintiff fails to prosecute its case with due diligence); Vann v. Brown, 244 S.W.3d 612, 614 (Tex. App.-Dallas 2008, no pet.) (stating standard of review).
III. CONCLUSION
        Having resolved Oliphant's sole issue against it, we affirm the trial court's dismissal order.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
 
071731F.P05
 
Footnote 1 The petition also alleged a cause of action for quantum meruit, which we do not discuss further.