Affirmed and Memorandum Opinion filed July 1 , 2014.

In The



## Fourteenth Court of Appeals

NO. 14

- 13

- 00546

- CV

MARY E. GONZALES , Appellant

V.

MAIN STREET ACQUISIT ION CORP. , Appellee

On Appeal from the Co unty Civil C our t at Law No

. 3

Harris County, Texas

Trial Court Cause No. 1017338

M E M O R A N D U M O P I N I O N

Appellant Mary E. Gonzales urge s that the trial court erred in entering

judgment in favor of Main Street Acquisition Corp

. on this assigned credit card

debt action . In a single issue, Gonzales argues that there is no evidence to support

the damage award of $3,022.97. We affirm.2 I. B ACKGROUND

Gonzales obtained a credit card with HSBC Bank Nevada N.A. in 2005.

HSBC assigned the a ccount to Main Street. Main Street filed this sworn suit for

breach of contract and account stated . Gonzales filed a verified denial. Main

Street also served Gonzales with requests for a dmission s , to which Gonzales

responded.

The parties tried their dispute to the court without a jury. On May 22, 2013,

t he trial court signed a judgment for Main Street and awarded $3,022.97 in actual

damages and $1,007.66 in attorney ’ s fees. Th is appeal followed.

II. A NALYSIS

Applicable Law

W hen we review the factua l and legal sufficiency of the evidence following

a bench trial, we apply the same standards as jury trials; that is, we view the

evidence in the light most favorable to any challenged finding and indulge all

reasonable inferences in support of the finding

. See City of Keller v. Wilson , 168

S.W.3d 802, 822 (Tex. 2005).

A party is entitled to relief under the common law cause of action for

account stated when (1) transactions between the parties give rise to indebtedness

of one to the other; (2) an agreem ent, express or implied, between the parties fixes

an amount due; and (3) the one to be charged makes a promise, express or implied,

to pay the indebtedness. Busch v. Hudson & Keyse, LLC , 312 S.W.3d 294, 298

(Tex. App.

— Houston [14th Dist.] 2010, no pet.). An agreement to the amount

owed can be implied from proof that account statements were sent to the

defendant, the defendant made charges and payments on the account, fees and

interest were assessed on the account, and the defendant retained credit card3

s tatements reflecting the fees and charges on the account with out disputing them.

Citibank (S .D. ), N.A. v. Durden

, No. 05

- 11

- 00154

- CV, 2012 WL 6096569 , at *2

(Tex. App.

— Dallas Dec. 7, 2012, no pet.).

The Evidence

To meet its burden at trial, Main Street relied upon t wo exhibits, both

admitted without objection : t he a dmissions from Gonzales ; and a b usiness r ecords

a ffidavit of Scott Loynd , Main Street’s designated agent, along with d ocument s

attached thereto. Neither party provided testimony about the a mount owing on the

account.

First, Gonzales ’ responses to Main Street’s r equests for a dmission s

established the following:

1. Gonzales applied for the credit card.

2. At Gonzalez request, the account was opened.

3. Gonzales understood from the time the account was opened that

(a) use of the credit card results in a loan being made to Gonzales for

the amount charged or cash advance requested and (b) Gonzales is

required to repay all charges or cash advances incurred on the

account.

4. Gonzales fully understood the risk and obligations associated with the

credit card accounts.

5. Gonzales “made the purchases and took cash advances using the

credit card made a basis of Plaintiff’s Original Petition.”

6. Main Street is the present owner and hold of the subject account.4

7. Since Gonz ales opened the account, she has not notified Main Street

of any dispute or error regarding any information contained in any

monthly statement and, prior to Main Street filing the lawsuit,

Gonzales never requested verification of the debt from Main Street or

disputed the debt owing on the subject account

.

8. Main Street requested and made a written demand upon Gonzales that

she pay for the subject account.

9. Gonzales has failed to pay Main Street for the subject account.

10. Gonzales last payment on the account wa s on or about June 30, 2009.

Second, in his affidavit, Scott Loynd averred, inter alia , that:

The records attached hereto are the original or the exact duplicates of
the original records and documents maintained by MAIN STREET
ACQUISITION CORP. pertaining to account number

5491100007831434 the account of MARY E GONZALES [S.S. No.

omitted] which was the name carried in our books and records. Per
the Plaintiff’s Original Petition, there is a balance owing on said account of $3,022.97 as of February 27, 2010, after giving credit for
all payments and credits.

Pertaining to the amount owing, the documentary evidence attached to Loynd’s

affidavit shows the following statements of account directed to Mary E. Gonzales

,

with the specified amounts due and payable to HSBC :

(a) February 7, 2010 statement from Household Bank Platinum :

“ Previous Balance” $ 2,946.22

“Finance Charge” $ 74.75

“New Balance” $ 3,022.97

(b) January 7, 2010 statement from Household Bank Platinum :

“Previous Balance” $2,840.995

“ Purchases/Debits” $ 35.00 1

“Finance Charge” $ 72.73

“New Balance” $ 2,948.22

(c) December 7, 2009 statement from Household Bank Platinum :

“Previous Balance” $ 2,740.89

“Purchases/Debits” $ 35.00

“Finance Charge” $ 65.10

“New Balance” $ 2,840.99

(d) Nove mber 8, 2009 statement from Household Bank Platinum :

“Previous Balance” $ 2,636.66,

“Purchases/Debits” $ 35.00

“Finance Charge” $ 69.23

“New Balance” $ 2,740.89

(e) October 7, 2009 statement from Household Bank Platinum :

“Previous Balance” $ 2,539.21

“Purchases/Debits” $ 35.00

“Finance Charge” $ 62.45

“New Balance” $ 2,636.66

(f) September 7, 2009 statement from Household Bank Platinum:

“ Previous Balance” $ 2,442.09

“Purchases/Debits” $ 35.00

“Finance Charge” $ 62.12

“New Balance” $ 2,539.21

(g) August 7, 2009 stateme nt from Household Bank Platinum:

“Previous Balance” $ 2,347.35

“Purchases/Debits” $ 35.00

1 “Purchases/Debits” of $35.00 for periods June, August, September, and October 2009

are itemized as “ Late Charge Assessments. ” “Purchases/Debits” of $35.00 for periods January

2010, December 2009, and November 2009 are listed as “ Overlimit Charge Assessme nts. ” The
credit limit stated on all account statements is $2,600.6

“Finance Charge” $ 59.74

“New Balance” $ 2,442.09

(h) J uly 7, 2009 statement from Household Bank Platinum:

“Previous Balance” $ 2,451.52

“Payments/Credits” $ 157 .00

“Finance Charge” $ 52.83

“New Balance” $ 2,347.35

(i) June 7, 2009 stateme nt from Household Bank Platinum:

“Previous Balance” $ 2,361.60

“Purchases/Debits” $ 35.00

“Finance Charge” $ 54.92

“New Balance” $ 2,45 1.52

(j) May 7, 2009 statement from House hold Bank Platinum:

“Previous Balance” $ 2,386.49

“Payments/Credits” $ 78.00

“Finance Charge” $ 53.11

“New Balance” $ 2,361.60

(k) April 7, 2009 stateme nt from Household Bank Platinum:

“Previous Balance” $ 2,407.99

“Payments/Credits” $ 75 .00

“Finance Charge” $ 53.50

“New Balance” $ 2,386.49

(l) March 8, 2009 stateme nt from Household Bank Platinum:

“Previous Balance” $ 2,441.11

“Payments/Credits” $ 83.00

“Finance Charge” $ 49.88

“New Balance” $ 2,40 7.99

Gonzales nonetheless argues that the $3,022.97 damages award i s

unsupported by credit card statements during the time that Gonzales actually used7

the credit. Stated differently, Gonzales urges that Main Street’s burden was to

bring credit card statements from the inception of the account in 2005 to show how

the balance was accumulated. Gonzales does not cite and we do not find any

authority for ho lding Main Street to such a burden.

The trial court examined evidence of twelve months of credit card

statements addressed to Gonzales. There is no evidence to suggest the statements

were not received by Gonzales. The statements culminate in February 2 010, in a

total amount of $3,022 .97 , the sum awarded by the trial court. The trial court also

examined the affidavit from Scott Loynd

, in which he averred, from stated

personal knowledge, that the balance owing on the account through February 27,

2010 is $3,022.97. Finally, the trial court received Gonzales ’ admissions that she

opened the subject account, understood that she was agreeing to repay sums

charged or advanced, and that she “made the purchases and took cash advances

using the credit card made t he basis of Plaintiff’s Original Petition

. ” Gonzales also

admitted that Main Street now owns the account, and, despite written notice of the

sums owing, she has neither paid nor disputed the account as reflected in any

monthly statement.

Gonzales, hersel f, provided no evidence or testimony about the subject

account. 2 The amount of the debt is thus established by numerous credit card

statements, the last of which shows the balance due and owing. See Nguyen v.

Citibank N.A. , 403 S.W.3d 927, 932 (Tex. App.

— Houston [14th Dist.] 2013, pet

. denied) (holding that Citibank’s affidavit from a custodian of records

authenticating numerous billing statements and ave r ring that a balance of

2 The trial court precluded Gonzales from offering any evidence about payments made as
Gonzales did not plead a “payment” affirmative defense

. Tex. R. Civ. P. 94. Gonzales does not

app eal this evidentiary ruling.8

$24,867.81 was due and owing was uncontroverted and, thus, sufficient evidence

for summary judgment).

Viewing this evidence in the light most favorable to the trial court ’s

judgment , we hold that the evidence is legally and factually sufficient to support

the trial court’s award of $3,022.97 . We overrule Gonzales sole issue on appe al

and, therefore, affirm the judgment

.

/s/ Sharon McCally

Justice

Panel consists of Justices Christopher, Jamison, and McCally.