Opinion
NO. 14-19-00726-CV
01-12-2021
BANK OF AMERICA, N.A., Appellant v. GEOFFREY A. GROFF, Appellee
On Appeal from the County Civil Court at Law No. 2 Harris County, Texas
Trial Court Cause No. 1097237
MEMORANDUM OPINION
Appellant Bank of America, N.A. appeals the trial court's take-nothing judgment after a bench trial on the Bank's claim for account stated. The Bank argues that its business records introduced into evidence established conclusively all required elements to support its claim and, alternatively, that the evidence is factually insufficient to support the trial court's implied findings against it. The Bank also argues that the trial court erred in not signing findings of fact and conclusions of law. After reviewing the record, we conclude that the Bank did not prove its claim conclusively, that the evidence is factually sufficient to support the trial court's judgment, and that the Bank waived its complaint challenging the absence of fact findings. We affirm the judgment.
Background
Appellee Geoffrey A. Groff allegedly applied for and received in 2001 a credit account with Bank of America but failed to make required periodic payments on the account. Bank of America sued Groff for account stated, seeking to recover the account balance of $17,468.38. Groff denied the Bank's allegations, and the parties proceeded to a bench trial.
At trial, the Bank presented no live witnesses but offered into evidence a business records affidavit by its custodian, Tiffany Graves. The court admitted the affidavit into evidence. Graves attested that Groff opened an account with Bank of America, which she identified by an account number; that Groff authorized the use of the account to purchase goods, services, or cash advances; that Groff failed to make periodic payments; and that Groff's account was "charged off" on January 30, 2016. Graves attached billing statements from January 2014 to January 2016. The billing statements are addressed to Geoffrey A. Groff at a Houston address Groff acknowledged has been his residence since February 2000. The statements reflect that purchases were charged to the account and that telephonic and online payments were made on the account. The statements also reflect that interest was charged against the account and late fees were periodically assessed. The January 2016 billing statement reflects a balance due of $17,468.38. Also attached to Graves's affidavit is a document represented to be the "cardholder agreement."
Groff was the only witness who testified live. Groff denied opening the account, making or authorizing charges on the account, or making payments on the account. Groff denied owing the Bank $17,468.38, and he denied the possibility that another member of his household used the account to make the charges. Groff agreed that he lived at the address listed on the billing statements but when asked if he had "any reason to dispute that these account statements were not mailed to [his] address," he answered, "I can't speculate. I wouldn't say yes or no." Groff said he was not the member of his family responsible for checking the mail. According to Groff, he first became aware of a credit card account with the Bank for $17,468.38 when he was sued in August 2017. Groff said he "report[ed] this matter to the police." He attempted to introduce into evidence an "identity theft affidavit," but the trial court excluded the affidavit on the Bank's objection.
At the conclusion of the trial, the judge found in Groff's favor and denied the Bank recovery. However, the judge also stated that he believed that Groff knew about the charges and that Groff or someone in his control made charges, but that the Bank failed to meet its burden to prove its claim. The trial court signed a take-nothing judgment against the Bank but did not sign any findings of fact or conclusions of law.
The Bank appeals.
Issues Presented
The Bank asserts that the take-nothing judgment is error for three reasons. First, the Bank argues that it proved conclusively all elements of its account stated claim. Alternatively, the Bank contends the judgment is against the great weight and preponderance of the evidence. In a final issue, the Bank challenges the trial court's failure to file findings of fact and conclusions of law.
Analysis
A. The Bank waived its complaint about the absence of findings and conclusions.
We address the Bank's issues out of order and begin with its last so that we may determine whether any error is presented by the absence of fact findings before we address the merits.
This was a nonjury trial. The trial court signed the final judgment on June 24, 2019. Findings of fact and conclusions of law must be requested within twenty days after judgment, and if no findings and conclusions are filed, the requesting party must file a notice of past due findings within thirty days of its original request. See Tex. R. Civ. P. 296, 297. Bank of America timely filed a request for findings of fact and conclusions of law on July 3, 3019. See Tex. R. Civ. P. 296. The trial court did not file findings and conclusions by the deadline, so the Bank was required to file a notice of past-due findings and conclusions by Friday, August 2, 2019. See Tex. R. Civ. P. 297. Bank of America filed a notice of past-due findings and conclusions, but not until Monday, August 5, 2019, which was untimely.
When findings of fact are properly requested but not filed, harm is presumed unless the record affirmatively shows that the requesting party was not harmed by their absence. See Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989); Watts v. Oliver, 396 S.W.3d 124, 130 (Tex. App.—Houston [14th Dist.] 2013, no pet.). However, when a party fails to file the notice pursuant to rule 297, the findings and conclusions are not properly requested. Licata v. Licata, 11 S.W.3d 269, 272 (Tex. App.—Houston [14th Dist.] 1999, pet. denied); see also Smith v. Harrison County, 824 S.W.2d 788, 792 (Tex. App.—Texarkana 1992, no writ). If findings of fact are not properly requested—including when a past-due notice is not filed within the thirty-day deadline imposed by rule 297—then an appellant waives a complaint that the trial court failed to file findings of fact and conclusions of law. Watts, 396 S.W.3d at 131; see also Haut v. Green Cafe Mgmt., Inc., 376 S.W.3d 171, 183 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding that past-due notice filed three days late waived issue). Accordingly, the Bank waived its third issue that the trial court failed to file findings of fact and conclusions of law, and we overrule it.
Although the trial court did not file written findings, it made several statements at the trial's conclusion. The Bank relies on these statements as the court's "findings." Specifically, the trial court said:
So my ruling is that I'm going to find in favor of the defendant. I will also say that I don't believe you didn't know about these charges. I absolutely believe that you or somebody in your control were making the charges, but the plaintiff did not carry its burden to prove that. And so my ruling is for the defendant, but I found the testimony did not prove it. So that's my ruling. Have a good day.
A trial court's oral statements such as these following a bench trial are not findings of fact, and we may not rely on them to reverse a judgment. See In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984) (per curiam); Grimes Cty. Bail Bond Bd. v. Ellen, 267 S.W.3d 310, 314 n.2 (Tex. App.—Houston [14th Dist.] 2008, pet. denied); Tex. Dep't of Pub. Safety v. Wilmoth, 83 S.W.3d 929, 931 (Tex. App.—Amarillo 2002, no pet.) ("[O]ral pronouncements by the trial court which allegedly explain its decision cannot be substituted for those absent findings of fact and conclusions of law.").
With this understanding of the record, we proceed to consider the Bank's evidentiary sufficiency challenges to the judgment.
B. The judgment is supported by sufficient evidence.
1. Standards of review
When, as here, no findings of fact or conclusions of law are filed or properly requested after a bench trial, it is implied that the trial court made all necessary findings to support its judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Cochran Invs., Inc. v. Chicago Title Ins. Co., 550 S.W.3d 196, 201 (Tex. App.—Houston [14th Dist.] 2018), aff'd, 602 S.W.3d 895 (Tex. 2020). We must affirm the trial court's judgment on any legal theory that finds support in the evidence. Hicks v. Hicks, 348 S.W.3d 281, 284 (Tex. App.—Houston [14th Dist.] 2011, no pet.). A party's failure to request findings of fact or conclusions of law does not waive its right to challenge the legal and factual sufficiency of the evidence on appeal. Willmore v. Quigley, No. 14-12-00060-CV, 2013 WL 2296187, at *3 (Tex. App.—Houston [14th Dist.] May 23, 2013, no pet.) (mem. op.); see also Holt Atherton, 835 S.W.2d at 84. The same sufficiency standards of review apply to findings by a trial court as to findings by a jury. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam).
The Bank challenges the legal and factual sufficiency of the evidence supporting the trial court's decision. As the plaintiff, the Bank bore the burden to prove all elements of its account stated claim. Because it challenges the legal sufficiency of an adverse finding on an issue on which it had the burden of proof, the Bank is entitled to reversal based on legal insufficiency if the evidence establishes, as a matter of law, all vital facts in support of the issue. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam); Fredieu v. W&T Offshore, Inc., 584 S.W.3d 200, 214 (Tex. App.—Houston [14th Dist.] 2018), aff'd, 2020 WL 3240869 (Tex. 2020). In our legal sufficiency review, we consider evidence and inferences supporting the trial court's judgment, and we ignore inferences to the contrary. See City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). As long as the evidence "would enable reasonable and fair-minded people to differ in their conclusions," we will not substitute our judgment for that of the factfinder, which is the only judge of witness credibility and the weight afforded their testimony. See id.; Matter of Guardianship of Croft, 560 S.W.3d 379, 383 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998). When a party attacks the factual sufficiency of an adverse finding on an issue on which it has the burden of proof, the party must demonstrate on appeal that the adverse finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow Chem. Co., 46 S.W.3d at 242. We must "detail the evidence relevant to the issue" and "state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict." Id. at 242. We may not substitute our judgment for that of the factfinder, even if the evidence would support a different result. See Maritime Overseas Corp., 971 S.W.2d at 407; 2900 Smith, Ltd. v. Constellation NewEnergy, Inc., 301 S.W.3d 741, 746 (Tex. App.—Houston [14th Dist.] 2009, no pet.). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Thomas v. Uzoka, 290 S.W.3d 437, 452 (Tex. App.—Houston [14th Dist.] 2009, pet. denied); GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).
2. The evidence is legally sufficient to support the judgment.
A party is entitled to relief under a claim for account stated when: (1) transactions between the parties give rise to indebtedness of one to the other; (2) an agreement, 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. See Busch v. Hudson & Keyse, L.L.C., 312 S.W.3d 294, 299 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Account stated is a proper cause of action for a credit card collection suit because no title to personal property or services pass from the bank to the holder of the credit account. See, e.g., Butler v. Hudson & Keyse, L.L.C., No. 14-07-00534-CV, 2009 WL 402329, at *2 (Tex. App.—Houston [14th Dist.] Feb. 19, 2009, no pet.) (mem. op.); Jaramillo v. Portfolio Acquisitions, LLC, No. 14-08-00939-CV, 2010 WL 1197669, at *7 (Tex. App.—Houston [14th Dist.] Mar. 30, 2010, no pet.) (mem. op.).
We are faced with diametrically competing narratives. For purposes of the Bank's legal sufficiency challenge, we consider only the evidence and reasonable inferences supporting the trial court's implied findings. In this regard, Groff denied opening or using the account. He testified that he neither authorized the charges nor made the payments indicated in the Bank's records. According to Groff, his first notice of the account with the Bank was in August 2017 when he was sued. Groff claimed his identity had been stolen, and he testified that he reported the matter to police. Viewing the evidence in the light most favorable to the judgment, all elements of the Bank's claim are not conclusively proven. Groff's testimony negates one or more elements of the Bank's account stated claim. The trial court could have reasonably found that Groff did not incur the debt and that no agreement existed between the parties for its repayment.
The Bank discusses Graves's affidavit and the attached documents in support of its first issue. These documents support the Bank's claim. However, as our review of the legal insufficiency point is limited only to the evidence supporting the judgment, see City of Keller, 168 S.W.3d at 827, we may not consider the Bank's evidence contradicting the judgment in our legal sufficiency analysis. While the Bank's evidence would have been sufficient to support a judgment in its favor had the trial court so found, the court ruled otherwise, and we may not substitute our judgment for the factfinder's even if we would have found differently. See Croft, 560 S.W.3d at 390.
We overrule Bank of America's legal sufficiency challenge and its first issue. See City of Keller, 168 S.W.3d at 823; see also In re J.S., No. 14-17-00024-CV, 2018 WL 830891, at *2 (Tex. App.—Houston [14th Dist.] Feb. 13, 2018, no pet.) (mem. op.).
3. The evidence is factually sufficient to support the judgment.
In its second issue, the Bank contends that the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. The Bank's factual insufficiency point is based primarily on its assertion that Groff's testimony must be disregarded as incompetent because the trial court found him not credible when, at the end of trial, it expressed disbelief that Groff was unaware of the charges.
Again, we may not consider the trial court's oral statements at the conclusion of a bench trial as a substitute for written fact findings. E.g., Grimes Cty. Bail Bond Bd., 267 S.W.3d at 314 n.2. And the court signed no findings regarding Groff's credibility. The trial judge could have changed his mind on that fact. See In re Marriage of Williams, No. 14-15-00090-CV, 2016 WL 2997094, at *1 (Tex. App.—Houston [14th Dist.] May 24, 2016, no pet.) (mem. op.). Under traditional factual sufficiency review, we examine all of the evidence, both in support of and contrary to the judgment. Maritime Overseas Corp., 971 S.W.2d at 406-07. Thus, our review includes all evidence admitted at trial, including Groff's testimony.
We summarize the evidence in support of the judgment above. The Bank, however, presented evidence contrary to the judgment. The Bank's evidence showed that an account was opened by a person with Groff's name, that statements were mailed to Groff's address, and that someone used the account to incur a balance of $17,468.38. Additionally, Graves's affidavit established that the account in question was opened in 2001 and that statements were mailed to Groff's address for at least sixteen years. There is no evidence Groff challenged any of the charges. There is evidence that periodic payments were made on the account, but Groff denied making or authorizing them, and the Bank did not present further evidence tending to show that the payments were in fact made by Groff as opposed to someone else. Graves also attached a cardholder agreement to her affidavit, but the document bears no signature or other indication of assent by Groff. A creditor need not produce a written contract to establish the agreement between the parties because one may be implied; but Groff denied that he opened the account or incurred the charges.
Busch, 312 S.W.3d at 299.
The Bank's evidence is not conclusive or irrefutable in the face of Groff's unequivocal denials of ownership or use. See, e.g., First Nat'l Bank of McAllen v. Brown, 644 S.W.2d 808, 811 (Tex. App.—Corpus Christi 1982, writ ref'd n.r.e.) (based on appellee's unequivocal denial that he signed document, jury was free to credit implication that signature was forged). Moreover, it was not Groff's burden to disprove the Bank's evidence; rather, the Bank bore the burden of proving each element of its claim and of persuading the factfinder that its proof was superior. See, e.g., Ramirez v. Welch, No. 05-16-00681-CV, 2018 WL 3725254, at *13 (Tex. App.—Dallas Aug. 6, 2018, no pet.) (mem. op.) (noting that plaintiff and defendant are in different positions: plaintiff bears the burden of proof and so must adduce evidence to support claim; defendant, however, "can prevail simply by persuading the factfinder that the plaintiff has not met his or her burden of proof"). We must presume that the trial court found some or all of Groff's testimony credible, and we may not substitute our judgment for the factfinder's. See Green Energy Oilfield Servs. LLC v. SignAd Ltd., No. 14-18-00005-CV, 2018 WL 6053916, at *2 (Tex. App.—Houston [14th Dist.] Nov. 20, 2018, no pet.) (mem. op.).
On this record, and in the absence of specific findings of fact as to any element of the Bank's claim or Groff's credibility, we cannot say that the trial court's judgment is so contrary to the overwhelming weight and preponderance of the evidence that it is clearly wrong and unjust. See id. at *2 (rejecting factual sufficiency challenge after bench trial; even though prevailing party's testimony was inconsistent, factfinder could have credited testimony favoring the judgment, and the record did not show that decision to be unreasonable); accord also Statewide Hydraulics, Inc. v. EZ Mgmt. GP, LLC, No. 14-13-01049-CV, 2015 WL 167160, at *5 (Tex. App.—Houston [14th Dist.] Jan. 13, 2015, no pet.) (mem. op.) (after review of competing evidence as to whether party owed debt, court determined that reasonable and fair-minded people could find that debt was owed, and court could not conclude that the finding was so against the great weight and preponderance of the evidence as to be manifestly unjust). We overrule the Bank's factual sufficiency challenge and its second issue.
Conclusion
We affirm the trial court's judgment.
/s/ Kevin Jewell
Justice Panel consists of Chief Justice Christopher and Justices Jewell and Hassan.