## In the Cou rt of Appeals Second Appellate District o f Texas at Fort Worth

___________________________ No. 02

- 22

- 00240

- CV

___________________________

On Appeal from County Court at Law No. 2 Tarrant County, Texas Trial Court No. 2019

- 000608 -2

Before Womack, Wallach, and Walker, JJ. Memorandum Opin ion by Justice W allach 

### S HYAM 

### A. J HA 

### , Appellant

V


### . B ANK OF 

### A MERICA 

### , N.A. , Appellee2 MEMORANDUM OPINION Appellant Shy am A. Jha , appearing pro se, appeals from the trial court ’ s judg ment in favo r of Appe llee Bank of America, N.A. (BANA) in a suit for account
stated. We will affirm. I. Background
I n January 2019 , B ANA, a wholly

- owned subsidi ary of Bank of Am erica Corporation and the successor

- in

- interest to FIA Card S ervices, N.A. (FIA) f/k /a
MBNA America , N.A. , sued J ha to reco ver a credit card debt in the a mount of $2,976.96

. 1
I n October 2020, the trial court hel d a bench trial. A t the start of the trial,
BANA offered Jha ’ s credit card account statements

— t otaling ninety

- six pages

— into
evi d ence under th e bu siness records exception to the hearsa y rule. See Tex. R. E vid. 803(6), 902(10). Jha objected to the credit ca rd account statem ents ’ admission on the grounds that the bu siness record affidavit acco mpanying the statements did not satisfy
the requirements of Rule 902(1 0) an d that the records were not “ complete. ” The tria l

court overru led Jha ’ s object ion and admitted the credit card account stat ements in to evidence. BANA then called Jha a s a witness. Under examination f rom BANA ’ s counsel, J ha admitted tha t he curr ently re sided at the address reflect ed on the credit card

1 The specific cause of a ct ion asserted i n BA NA ’s pe tit ion is “ account stated. ”3 account statem ents a nd had lived there for appr oximately eighteen year s ; that he had
an account with B ANA ending in 3706 as reflected on th e statements ; that he had used the account to make pur chase s ; that he had m ade payments on the account; that
he had ceased making pay ments o n the account; and th at there was a remain ing
balance due a nd owing on the account. Jha argued that b ecause he had ori ginally opened hi s credit card ac count with
MBNA America

— BANA ’s predecessor

- in

- int erest 2

— and because BANA had n either
proven what right s it had as “ as signee ” nor had offered t he o riginal agreement between Jha and MBNA America into evidence , B ANA had not prove n all the
elements of its acco unt

- stated cause of action. Jha also argued that the amount of the
debt was inc orrect because it had bee n calculate d based on ame nded credit terms to which Jha had not agreed. 3 How ever, on cross

- examination , Jha admi tted that he h ad

neve r obj ecte d to any of the amendments to the credit agreement and ha d continued

to use his credit card after each amendment.
In Mar ch 2022, the tria l c ourt si g ned a judgment awarding B ANA $2,600.10 and court costs. Upon Jha ’ s request , the trial court issued findings of fact
and conclusion s of law in May 2022. This ap peal fol lowed.

2 Jha ope ned his credit card account in 2003. MBNA America changed its name to FIA in 200 6. FIA “ merged into an d under the cha rte r and title of ” B ANA in 2014.

3 When as k ed what h e believed to b e the correct debt amount, Jha testifi ed that he had “ not calculated that. ”4 II . Discuss ion Jha raises two issues on appeal . First , he a sserts that the trial co urt abused it s discret ion by admitting his cr edit card account statements into evi dence as busine ss records

. Second, he argues that the evi dence is factually insufficient to support the
trial court ’ s judgment. These arguments lack merit.
A. Adm ission of the Credit Card Account Statemen ts In his fir st issue, J ha argues that the trial court erred by admitting his cre dit card

account statements into evi dence a s business records. Specific ally, J ha cont ends that
the bu siness record s affidavit acco mp anying the stateme nts did not sati sfy the requirements of Rule s 803(6) and 902(1 0) and that he had “ demon st rate[d] that the
source of information or the method or circumstance s of prepa ration indicat e [d] a lack of trustwor thiness. ” See T ex. R. Evid. 8 03(6) (E) , 902(10 ).
We will not disturb a trial court ’ s evidentiary ruling s absent an abuse of
discretion. See Fleming v. Wilson , 610 S.W.3d 18, 21 (Tex. 2020) ; Bay Area Healthcare Grp. Lt d. v. McShane , 239 S.W.3d 231, 234 (Tex. 2007 )

. “A trial court abuse s [its ]
discreti on when it acts without regard for guiding rules or principles.” U

- Haul Int ’ l, Inc. v. Waldrip , 380 S.W.3d 118, 132 (Tex. 2012). But even if a trial court ’ s evidentiary
rul ing constitutes an abuse of discretion, reversal is appropriate only if th e error wa s harmful. Id. ; Tex. R. App. P. 44.1. Hearsay is not admissible unless a statute or the rules of evi dence provide
otherwise. T ex. R. Evid. 802. Pursuant to R ule 803(6)

— comm on ly referred to as the5 business rec ords e xception

— records of a regu larly conducted activity are admissible provided that the requirements of the rule are met. 4 T ex. R. Evid. 803(6 ). Moreover, business records accompanied by an affidavit meeting the requir ements of R ule 902(10) are self

- authenticating. T ex. R. Evid. 902(10 ).
Her e, the bus iness records affidavit attached to Jha ’ s credit card accou nt

statements satisfied the req u irements of Rule s 803(6) and 902(10). The affi an t Latasha
York averred that she is “a cus todian of records of BANA and [is] familiar with the

manner in whi ch its rec ords are created and maintained by virtue of [her] duties and responsibilities.” See T ex. R. Evid. 803(6)(D), 9 02(1 0 ) (B)

. York s pecified that

4 Rule 803(6) pro vides that “[a] record of an act, event, condition, opinion, or diagnosis ” is not excluded by the rule against hear say if (A) the r ecord was made at or near the time by

— or from information tra nsmitted by

— someone with knowledge; (B) the record was kept in the course of a regularly conducted business activity; (C) making the record was a regular practice of that activity ; (D) all thes e condition s are shown by the testimony of the custodian or ano ther qualified witness, or by an affidavit or unsworn declaration that complies with Rule 902(10); and (E) the opponent fails to demonstrate that the source of information or the method or circ um stances o f preparation indicate a lack of trustworthiness. “B usiness” as used in this paragraph includes every kind of regular organized activity whether conduc ted for profit or not. Tex. R. Evid. 803(6).6 “ 96 pages of records ” were atta ch ed to her affi davit and confirmed that they w ere

“ the or iginal records o r exact duplicates of the original records

. . . . ” See Tex. R. Evid. 902(10)(B). S he further averred that “ [t] he records were made at or near the time of each act or event they purport to describe occurred ” ; that th ey “ were kept i n the
course of [a] regu larly conducted business activity ” ; and that “ [i] t is the regular practice of the business activity to make the records.” See T ex. R. Evid. 803(6) (A)

– ( C), 902(10) (B)

. Altho ugh Jha a ttempted “ to demonstrate that the source of information o r the
method or ci rcumstances of preparation ” of the cre dit card account statements

“ indicate a lack of trustworthiness , ” we can not conclude that the trial court erred by imp licitly fi nding that he f ai led to do so. See Tex. R. Evid. 803(6)( E)

. First, Jha a rgues that the rec ords shou ld be excluded because York ’ s affidavit “ make s no statement about her personal knowledge of [FI A f/k/a MBNA America] , ” BANA ’ s predecessor

- in

- interest. However , because FIA f/k/a MB NA Americ a “ merged into

an d under the cha rte r and title of ” B ANA in October 2014 , York ’ s averment s concerning BANA ’ s busi ness pr actices and record keeping are sufficient since BANA
“stands in the shoes” of FIA f/k/a MBNA America and its business o peration s are considered a continuation of its pre dec e ssor ’ s . 5 See Greene’s Pressure Treating & Rentals,

5 We note that all of the credit car d account statem ents a tta ched to York ’ s affidavit are date d after the Oct ober 2014 me rger of FIA f/k/a MBNA America into BANA

. Thus, even if B ANA ’ s business pr actices and record

- keeping procedures were not deemed a continuation of thos e of its predec essor

- in

- intere st , Jha ’ s c omp la int7 Inc. v. Fulbright & Jaworski, L.L.P. , 178 S.W.3d 40, 44 (Tex. App.

— Houston [1st Dist.] 2005, no pet.) (“In a m erger, the successor o rganization stand s in the shoes o f prior management and continues the operations of the prior e ntity

. ” ); see als o Voice of Cornerstone Church Corp. v. Pizza Prop. Partners , 160 S.W.3d 657, 66 6 (Tex. App.

— Austin 2005, no pet.) (holding that Exx on Mobil, as Mobil Oil’s succes sor

- in

- interest by merger, “st[ood] in the shoes” of Mobil Oil and thus had st anding to enforce a restrictive covenant in a special warranty deed reflecting Mobil Oil as the grantor)

. Second, Jha argues that York ’ s af fi davit i s “ missing im portant ele ments
. ” Among
othe r deficiencies, J ha states that York “ does not declare what is the current balance owed on Jha’s account ” and that her affi davit is a form document that never mentions Jha by name, does not menti on Jha’s account number, does not menti on when Jha open ed the accou nt, does not mention what was the ending balance or the star ting balance of the account when it acquired the account from MBNA or FIA card services, does not mention when Jha’s account was charged o ff and what was the account ba lance remaining unpaid, and what was Jha’s beginning account balance when the account wa s absorbed into BANA

. However, as Jha acknowledges in his brief , “ [t] he rules of evidence do not require that

t he qualified witne ss who lays the predi cate for the adm ission of business
records

. . . have personal knowledge of the contents of the record; th e witness is required only to have personal knowledge of the manner in which the records were kept. ” Singh v. Citibank (S .D. ), N. A. , No. 03

- 10

- 00408

- CV , 2 011 WL 1103788 , at
would be ren dered moot by the fact that all of the records admitted into evidence appear to have been generated after the merger .8 *4 (Tex. App.

— Austin Mar. 24, 2011, no pet. ) (mem. op.). York ’ s affidavit serves on ly
to authenticat e the credit card account stateme nts , which spe ak for themsel ves ; thus,
the rules of e vidence do not requi re her affi dav it to co rroborate the records ’ co ntent
. See Tex. R. Evid. 803(6), 902(1 0) (B). Because York ’ s affidavit meets the requ ir ements of Rule s 803(6) and 902(1 0), the tr ial court did not err by admitting the credit car d

account statements. See i d. In sum, Jha has shown no abuse o f discretion in the trial court ’ s decision to admit th e credit card account statem ents attached to Yor k ’ s affidavit into evidence

. Accord ingly, w e o ver rule Jha ’ s first issue.
B. Suff iciency of the Evi dence
In his second issue, Jha argues that the evidenc e is factua lly i nsufficient to
support the tr ial court ’ s judg ment. This argument is without merit.
1. Standard of Review
When r eviewing the factual sufficiency of the evidence , we examine the entire record, considering both the evidence in favor o f and contrary t o the challenged findings. George Joseph Asset s, LLC v. Chenev ert , 557 S.W.3d 755, 765 (Tex. Ap p.

— Houston [14th Dist.] 2018 , pet. denied)

. W hen , as here, the party without the burden of proof on a fact issu e complains of an adverse fact fin ding , that party must show that “insufficient evidence” supports the finding

— that is, that the credible evidenc e supporting the finding is too weak or that the finding is against the gre at weight and preponderance of contrary credible evidence. Gooch v. Am . Sling Co

. , 902 S.W.2d 181,9 184 (Tex. App.

— Fort Worth 1995, no writ) ; s ee Garza v. Alviar , 395 S.W.2d 821,
823 (Tex . 1965) ; W. Wend e ll Hal l & Ryan G. Anderson , Standards of Review in Texas , 50 St. Mary’s L.J. 1099, 1134

– 35 n. 203 (2019)

. W e set aside a fin ding only if, af ter considering and weighing all the pertinent record evidence, we determine tha t the
credible evidence supporting the find ing is so weak, or so contrary to the
overwhel ming weight of all the evidence, that the finding should be set aside a nd a
new trial o rdered. Pool v. Ford Motor Co. , 715 S.W.2d 629, 635 (Tex. 1986) (o p. on reh’g); Cain v. Bain , 7 09 S.W.2d 175, 176 (Tex. 19 86); Garza , 395 S.W.2d at 823

. “ In assessing t he evidence, we do not act as a factfinder; we may not pass on the
credibili ty of the witnesses or substitute our judgment for that of the factfinder. ”
Chenevert , 557 S.W.3d at 765 (c iting In re Est ate of Parrimore , No. 14

- 14

- 00820

- CV,
2016 WL 750293, at *5 (Tex. App.

— Houston [14th Dist.] Feb. 25, 2016, no pet.) ( mem. op.) )

. Rath er , the trial court, as the trier of fact , is the “sole judge of the credibility of the witnesses and the we ight to afford their testimony.” Id. (quoting
Esta te of Parrimor e , 2016 WL 750293, at *5 ).
2. T he Evidence Is Sufficient to Support the Trial Court ’ s Judgment To prev ail on its account

- stated cause of action, BANA was required to prove the following elemen ts by a prepond erance of the evidence: (1) transactions between the parties that give rise to indebtedness of one to the other; (2) an agreement, ex press or implied, between the parties that fixes an amount due; and (3) the party to be charged

— in this ca se , Jha

— ma de a pr omise , express or implied, t o pay the10 indebtedness. Damron v. Citibank (S .D. ), N.A. , N o. 03

- 09

- 00438

- CV,
2010 WL 3377777 , at *4 (Tex. App

. — Austin Aug. 25, 2010, pet. denied) (mem. op.) ( fi r st citin g Busch v. Hudson & Keyse, LLC , 312 S.W.3d 2 94, 299 (Tex. App.

— Houston [14th Dist.] 2010, no pet.) ; and th en citin g Dulong v. Citib ank (S.D.), N.A. , 261 S.W.3d
890 , 893 (Tex. App.

— Dall as 200 8 , no pet. ) ). T he re is sufficient record evidence to
support the tri al court ’ s d etermination that BANA proved each of these elements

. To sup port its account

- stated claim, BANA relied upon both the credit card

accou nt statements discussed abo ve and Jha ’ s ow n testimony r egarding the account

. As previously noted, Jha admitted tha t he currently re sided at the address reflect ed on
the credit card account statem ents a nd had lived there for appr oximately eighteen
year s ; th at he had an acc ount with B ANA ending in 3706 as reflected on th e

statements ; that he had used the account to make pur chases ; that he had made
payments on the ac count; that he had ceased making pay ments o n the account; and
th at there was a remain ing balanc e due a nd owing on the account. Jha c omplains t hat “ B ANA did not introduce any evidence of the original agreement between Jha and MBNA [Ameri ca] ” or “ of a se pa rate agreement between BANA and Jha. ” H owever, no such proof was required for BANA to prevail on its

account

- stated claim. Because the requisite agreement can be express or implied,
BANA was not required to present evidence of a written cardm ember c ontract but could instead present evidence of acts and conduct by the parties that give rise to an implied agreement fixing an amount due and an implied pr omise by Jha to pay the11 indebtedness. See Damron , 2010 WL 3377777 , at *4 ; see also Busch , 312 S.W.3d at 299 ; Dulong , 261 S.W.3d at 894. Such a cts and conduct could include Jha ’ s use of the card to make purchases ; his making payme nts on the accou nt ; and his acquiescence in
BANA ’ s imposition of interest, fees, and charges. See Damron , 2010 WL 33 77777 , at *4 ; see also Busch , 312 S.W.3d at 299

– 300; D ulong , 261 S.W.3d at 894. The cre dit card

account statements together with Jha ’ s own a dmissions concer ning the account , particularly his purch ase s and payme nts , are suffic ient to establish a series of
transactions between BANA and Jha , as well as acts and conduct establishin g (1 ) that
BANA and Jha had an implied agreement fixing an amount d ue equal to the cash
advances that he had received and the purchases he had made, less payments and credits to his account, plus interest and fees and (2) that Jha impliedly promised to pay
BANA th e amount due. See, e.g. , Damron , 2010 WL 3377777 , at *5; Mc Farland v.
Citib ank (S.D.), N.A. , 293 S.W.3d 759, 76 3 (Tex. App.

— Waco 2009, no pet.) ; Dulong , 261 S.W.3d at 894. Jha also argues that he neve r explicitly agreed to the various changes to th e

term s of his ac count agreement over the years

. 6 However, just as the agreement giving
rise to BANA ’ s accou nt

- sta ted claim can be implied by the parties ’ conduc t , so too

6 Jha also questions whether B ANA , a s FI A f/k/a MBNA America ’ s
“ assignee, ” had author ity to change th e terms of th e ag reeme nt
. However, because

— as set forth above

— BANA “ stand s in the sho es ” of FIA f/k/a MBNA America, it has the same rights to modify the agreement as did it s predecessor

- in

- interest

. See Greene’s Pressur e Treating & Ren tals, Inc. , 1 78 S.W.3d at 44 ; Voice of Corn erstone Church Corp. , 160 S.W.3d at 66 6

.12 can Jha ’ s accept ance of any modi fied term s . See Damron , 2010 WL 3377777 , at *4 ; Busch , 312 S.W.3d at 299 ; Dulong , 261 S.W.3d at 8 94

. At trial , Jha admitted th at he had
continued to use his cred it car d and to make payments on his account af ter being
notified of each of the complai n ed

- of changes to the terms of the agreement and that
he had never contacte d BANA to reje ct the modified terms
. While Jha test ified that
he had never agreed to the modified terms , the trial co urt, as factfind er, was free to
disb eli eve his te stimony or to g i ve it little w eight. Se e, e .g. , Woods v. Woods , 193 S. W.3d 720, 726 (T ex. App.

— Beaumont 2006, pet. denied)

. Bea rin g in mind the adage that

“ actions s p eak louder than words , ” we c annot say that the trial court ’ s determination
that Jh a had impliedly accepte d all of the changes to the cred it agreement is against the gre at weigh t and preponderance of contrary credible evidence. See Gooch , 902 S.W.2d at 184

. In sum, t he credit card account statements toget her with Jha’s own testimony concerning the charges and payments on his account provide d sufficient evidentiary
support for the trial court ’ s determinati on that BANA had proven each element of its

ac count

- stated claim. Accordin gly, we overrule Jha ’ s second issue.
C. Ju dgment Amoun t
I n its petitio n, B ANA sought a judgment in the amount of $2,976.96 , the
balance sh own o n th e last credit card account statem ent attached to Yor k ’ s affidavit , b ut the trial court a w ar ded BANA a judgment of only $2,600.10

. In its brief, BANA
asks that we remand this matter to the trial court with instructions to in crease the13 amoun t of the judgment to $2,976.96. A lthough the credit card account stateme nts appear to support BANA ’ s requested judgment am ount and the trial court failed to provide any e xplanation as to how it de rived its less er judgment amount o f $2,600.10, 7
be cause BANA did not file a notice of a ppeal, we cannot grant it more favorable relief
than did the tri a l co urt exce pt for ju st cause
. See Te x. R. App. P. 25.1 (c) ; Perlman v.
EKLS Fi restopping & Constr., LLC , No. 05

- 18

- 009 71

- CV, 2019 WL 27107 52, at

* 5 (Tex. App.

— Dallas June 28, 2019, no pet.) (mem. op.)

. Because BANA ’ s brief fails to state any just cause that would warrant granting the relief sought in the absence of a timely notice o f appeal , we deny its request to remand this case.
III. Co nclusion Having overruled both of Jha ’ s issues and having determined that no just cause
exists to grant BANA ’ s remand request, see Tex. R. App. P. 25.1 (c) , we affirm the trial

court ’ s judgment

.

/s/ Mike Wallach Mike Wallach Justice
Delivered: April 27, 2023

7 The tri al court ’ s judgment amount is $376.86 less than the sum requested by B ANA. This differ ence matches th e amount of “ [t] otal interest char ged in 2014 ” reflected on the first credit card acco un t statement attach ed to York ’ s affidavi t. However , t he trial c ourt did not explain its reason ing for excluding this charg ed interest from the judgment.