Simien v. Partners

• Citation: 321 S.W.3d 235
• Decision Date: 15 July 2010
• Docket Number: No. 01-08-00593-CV.,01-08-00593-CV.
• Parties: Michelle D. SIMIEN, Appellant, v. UNIFUND CCR PARTNERS, Appellee.
• Court: Court of Appeals of Texas

321 S.W.3d 235

Michelle D. SIMIEN, Appellant,

v.UNIFUND CCR PARTNERS, Appellee.

No. 01-08-00593-CV.

Court of Appeals of Texas,Houston (1st Dist.).

July 15, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Richard Tomlinson, Law Office of Richard Tomlinson, Houston, TX, for Appellant.

Andrew E. Lemanski, Brian E. Staley, James Nace Hull, Hull & Associates, P.C., Houston, TX, for Appellee.

Panel consists of Justices KEYES, ALCALA, and HANKS.

OPINION ON REHEARING

ELSA ALCALA, Justice.

Appellant, Michelle D. Simien, has filed a motion for en banc reconsideration of our opinion issued on April 15, 2010. We withdraw our opinion and judgment of April 15, 2010, and substitute this opinion and judgment in their place. Because we issue a new opinion, Simien's motion for en banc reconsideration of our prior opinion is moot. See Richardson-Eagle, Inc. v. William M. Mercer, Inc., 213 S.W.3d 469, 472 (Tex.App.-Houston [1st Dist.] 2006, pet. denied).

In this lawsuit to collect credit card debt, Simien appeals a judgment following a bench trial in favor of Unifund CCR Partners (hereafter “Unifund”). In five issues, Simien challenges the legal and factual sufficiency of the evidence and contends the trial court erred by admitting hearsay documents, excluding deposition evidence, awarding attorney's fees, and awarding prejudgment interest. We conclude the trial court properly admitted evidence, the evidence is legally sufficient to support the award of damages, and the trial court properly awarded attorney's fees and prejudgment interest. We therefore affirm.

Background

Simien opened a credit card account with Citibank. The credit card allowed Simien to make charges and receive cash advances, which she was obligated to repay under the terms of her agreement with Citibank. Simien received monthly statements showing her account expenditures, payments, and monthly balances. Simien made no attempts to dispute any information in the monthly statements or the amount showing on the account. Simien failed to pay the amount showing as of December 18, 2002, which was $10,540.51. Unifund purchased the debt on Simien's credit card account from Citibank on November 29, 2005.

On September 12, 2007, Unifund filed suit against Simien based on Simien's failure to pay the balance on the account. Unifund sought $34,600.08 in unpaid principal and interest. In her answers to requests for admission, Simien admitted that she breached the credit card agreement, but she did not admit the damages or the interest rate alleged by Unifund were accurate.

Over Simien's objection at trial, the trial court admitted a business record affidavit offered by Unifund that was signed by one of its employees, Joseph Lutz. Unifund attached documents to the affidavit, including a Unifund statement; an Assignment to Unifund from Citibank; three Citibank monthly statements; and a Citibank Card Agreement. Unifund also attached an affidavit from Kim Kenney. Neither affidavit included any reference to an explicit interest rate that would show how Simien's principal debt of $10,540.29 grew to $34,600.08 by July 23, 2007. Unifund's attorney also presented live testimony in support of the reasonableness and necessity of the attorney's fees sought. Unifund offered no other evidence.

In support of her objection to the Lutz affidavit, Simien offered portions of a deposition given by Lutz at a previous trial concerning an attempt to collect a different debt from a different debtor. The trial court excluded the deposition, ruling Lutz's testimony in the prior case was irrelevant and inadmissible. Simien did not personally appear at the trial. Simien's attorney did not introduce any evidence at the trial.

The trial court's judgment awards Unifund $34,600.08 in damages and $6,000 in attorney's fees. Following the trial, the court made findings of fact and conclusions of law.

Admission of Evidence

In her first two issues, Simien asserts that the trial court erred by (1) admitting hearsay documents and (2) excluding a deposition.

A. Standard of Review

Evidentiary rulings are committed to the trial court's sound discretion. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex.2007). We review a trial court's decision to admit or exclude evidence for an abuse of that discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex.2005). A trial court abuses its discretion when it acts without reference to any guiding rules and principles. Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex.1999). We must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998); Oyster Creek Fin. Corp. v. Richwood Invs. II, Inc., 176 S.W.3d 307, 317 (Tex.App.-Houston [1st Dist.] 2004, pet. denied).

B. Admission of Business Records Affidavit

Simien contends the affidavit by which Unifund sought to authenticate its business records under the hearsay exception is inadequate, and the trial court, therefore, erred by admitting hearsay. In her motion for rehearing, Simien contends the business records do not meet the test for admissibility of third-party documents stated by this Court in Bell v. State, 176 S.W.3d 90 (Tex.App.-Houston [1st Dist.] 2004, no pet.).

1. The Rules of Evidence

“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex.R. Evid. 801(d). The proponent of hearsay has the burden of showing that the testimony fits within an exception to the general rule prohibiting the admission of hearsay evidence. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n. 5 (Tex.2004).

Rule 803(6) of the Texas Rules of Evidence provides the following exception to the hearsay rule for business records:

A ... record ... made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

Tex.R. Evid. 803(6); see In re E.A.K., 192 S.W.3d 133, 141 (Tex.App.-Houston [14th Dist.] 2006, pet. denied).

The predicate for admission of the business records may be established “by affidavit that complies with Rule 902(10).” Tex.R. Evid. 803(6). Rule 902(10) provides that records “shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of Rule 803(6) or (7).” Tex.R. Evid. 902(10)(a).

Rule 902(10) provides a form for the affidavit and states the affidavit “shall be sufficient if it follows this form though this form shall not be exclusive, and an affidavit which substantially complies with the provisions of this rule shall suffice....” Tex.R. Evid. 902(10)(b). The form specified by the rule is as follows:

My name is ______, I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated:

I am the custodian of the records of ______. Attached hereto are ______ pages of records from ______. These said ______ pages of records are kept by ______ in the regular course of business, and it was the regular course of business of ______ for an employee or representative of ______, with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original.

Id.

2. Admissibility of Third-Party Documents

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. Bell, 176 S.W.3d at 92 (citing Tex.R. Evid. 803(6); Harris v. State, 846 S.W.2d 960, 963-64 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd)). Both Bell and Harris rely on federal authority interpreting Federal Rule of Evidence 803(6). See Guevara v. Ferrer, 247 S.W.3d 662, 667 n. 3 (Tex.2007) (stating that considering federal precedent concerning rules of evidence is appropriate); see also, e.g., Air Land Forwarders, Inc. v. U.S., 172 F.3d 1338, 1343 (Fed.Cir.1999) (applying same test as articulated in Bell, 176 S.W.3d at 93).

In determining whether the trial court properly admitted the Lutz affidavit, we apply the three factors in Bell. See Bell, 176 S.W.3d at 92. The Lutz affidavit states,

The affiant is the designated agent of Unifund CCR partners (Plaintiff) in the above entitled and numbered cause, and that in such capacity is authorized to make this affidavit on Plaintiff's behalf.

That the affiant has reviewed the file in this matter and upon review of the file has personal knowledge of the facts set forth in this affidavit and is not disqualified from making this affidavit or giving testimony herein.

That affiant is a designated agent and has personal knowledge of the books and records of the Plaintiff concerning this claim against Defendant, MICHELLE D. SIMIEN.

The attached documents are kept by Plaintiff in the regular course of its business as permanent records of the company and it was the regular course of business for an employee with personal knowledge of the act, event, or condition recorded to make the memorandum or record, or to transmit the information thereof to be completed in such attached

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