Opinion issued December 9, 2010
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-00579-CV
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Monty J. Wood, Appellant
V.
Pharia L.L.C., Appellee
On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Case No. 932732
MEMORANDUM OPINION
Appellant, Monty J. Wood, appeals from the judgment of the trial court awarding $9,504.80 to appellee, Pharia L.L.C. (“Pharia”), on its suit for breach of contract relating to a credit card debt. In ten issues, Wood contends that the trial court erred by overruling his evidentiary objections; that if his objections had been sustained, the remaining evidence is legally and factually insufficient; and that the trial court erred by not filing findings of fact and conclusions of law and by not granting judgment in favor of Wood on his counterclaim. We conclude that the evidence is legally and factually sufficient and that the trial court’s evidentiary rulings and rulings on Wood’s counterclaim were proper. We also conclude that the trial court’s failure to file findings of fact and conclusions of law was harmless. We affirm.
Background
Wood opened a credit card account with Chase Manhattan Bank (“Chase”) in March 2000. Wood last made a payment on his account in June 2006. Wood’s indebtedness has been transferred three times:
● Chase sold appellant’s account to Unifund Portfolio A, LLC;
● Unifund Portfolio A, LLC assigned the account to Unifund CCR Partners; and,
● Unifund CCR Partners sold the account to Pharia.
Pharia made a demand for payment in October 2008, asserting that appellant owed $10,585.73 on the account. Wood did not pay, and Pharia sued him for breach of contract, seeking $10,585.73, pre- and post-judgment interest, costs, and attorneys’ fees. Wood asserted counterclaims for violations of the Federal Fair Debt Collection Practices Act (“FDCPA”) and the Texas Debt Collection Act.
A bench trial was held. Pharia offered into evidence a business records exhibit, supported by the affidavit of Holly Chaffin as custodian of appellee’s records. The exhibit included:
● the demand letter sent to Wood,
● an affidavit from Kathryn Halpin, an authorized representative of Unifund CCR Partners, attesting to the assignment history of Wood’s account from its origin with Chase to its assignment to Pharia and asserting that Wood owed $9,504.80 when Pharia purchased the account,
● a Bill of Sale from Unifund CCR Partners to Pharia (the “Pharia Bill of Sale”),
● an Authorization for Assignment of Accounts from Unifund Portfolio A to Unifund CCR Partners (the “Authorization for Assignment”),
● a Bill of Sale from Chase to Unifund Portfolio A (the “Chase Bill of Sale”),
● numerous account statements sent to Wood, and
● a 2004 “Cardmember Agreement” purporting to govern Wood’s credit card account (the “2004 Agreement”).
Wood objected to Pharia’s business records exhibit, arguing that the Chaffin and Halpin affidavits were conclusory, constituted hearsay, and violated the best evidence rule and the parol evidence rule.[1] Wood also asserted that the 2004 Agreement constituted a unilateral modification of his original agreement with Chase and that Pharia had failed to show that the original agreement allowed a unilateral modification. Finally, Wood pointed out that the Chase Bill of Sale did not include an exhibit showing that Wood’s account was included in the assignment.
Pharia responded that Wood had agreed to the 2004 Agreement by his continued use of the card. Pharia argued that even if the Chase Bill of Sale was not accompanied by an attachment listing Wood’s account, the conveyance from Chase to Unifund Portfolio A was established by the totality of the evidence. The trial court admitted Pharia’s exhibit in its entirety and orally ruled in favor of Pharia on its claim and on Wood’s counterclaims.
The trial court entered judgment awarding $9,504.80 on Pharia’s contract claim. Wood timely filed a request for findings of fact and conclusions of law, both parties filed proposed findings of fact and conclusions of law, and Wood filed a timely notice of past due findings of fact and conclusions of law. The trial court did not make any findings of fact and conclusions of law.
Evidentiary Challenges[2]
In his second and fourth issues, Wood challenges the admission of portions of Pharia’s trial exhibit. He contends that the Chaffin and Halpin affidavits were conclusory, hearsay statements and violated the best evidence and parol evidence rules. He further asserts that the 2004 Agreement should not have been admitted because it is a unilateral modification of the original agreement between himself and Chase.
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 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 or 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 Fiberglass 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. Affidavits
Wood contends that the Chaffin affidavit, by which Pharia sought to authenticate its exhibit under the business records exception to the hearsay rule, and the Halpin affidavit, which was included in Pharia’s business records, are (1) hearsay, (2) conclusory, and (3) insufficient under the best evidence and parol evidence rules.
1. Hearsay
“Hearsay” is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d); Simien v. Unifund CCR Partners, 321 S.W.3d 235, 240 (Tex. App.—Houston [1st Dist.] 2010, no pet.). The proponent of hearsay has the burden of showing that the testimony fits within an exception to the general prohibition of hearsay evidence. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004); Simien, 321 S.W.3d at 240.
The record establishes that Pharia offered its trial exhibit pursuant to the business records exception to the hearsay rule, relying in large part on recent authority from this Court. See Tex. R. Evid. 803(6), 902(10); see generally Simien, 321 S.W.3d at 239–46. Simien involved a suit for breach of contract to recover a credit card debt, in which exhibits substantially similar to Pharia’s were offered, objected to, and admitted by the trial court. See generally Simien, 321 S.W.3d. at 238–39. This Court analyzed the evidence in Simien and found it to be properly admitted; additionally, this Court held that the evidence was legally and factually sufficient to uphold the trial court’s verdict for the plaintiff. Id. at 245, 248.
Simien was presented to the trial court and appeared to govern the court’s evidentiary ruling. Wood’s brief to this Court, however, fails to mention Simien or the business records exception. Pharia relied on Chaffin’s affidavit as a predicate for the trial exhibit’s admission under that specific exception. Chaffin’s affidavit substantially comports with the form provided by Rule 902(10)(b), which states that an affidavit offered as a predicate for the introduction of business records under Rule 803(6) “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); see Simien, 321 S.W.3d at 240.
It is not clear from the trial record for what purpose Pharia offered Halpin’s affidavit. However, we observe that Halpin’s affidavit, like Chaffin’s affidavit, satisfies the requirements of Rule 902(10). We also observe that Halpin’s affidavit was accompanied by her employer’s business records, just as Chaffin’s was accompanied by Pharia’s business records. Wood does not assert that the Chaffin and Halpin affidavits are not in the proper form for a predicate for admission of business records. Because the affidavits comply with rule 902(10), the trial court did not abuse its discretion by admitting them.
Further, the third-party records contained in Pharia’s trial exhibit are also admissible, even though they were not created by Pharia. In Simien, considering a similar affidavit, this Court applied the three-part test for the admission of third‑party business records, as follows:
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.
Simien, 321 S.W.3d at 240–41 (citing Bell v. State, 176 S.W.3d 90, 92 (Tex. App.—Houston [1st Dist.] 2004, no pet.)).
Here, like the affiant in Simien, Chaffin stated that the third-party records contained in Pharia’s trial exhibit were “kept by Pharia L.L.C. in the regular course of business,” that the records were “in the care, custody and control of Pharia L.L.C,” and that she herself was the custodian of Pharia’s records, had reviewed those records, and had personal knowledge of the records concerning Wood. See Simien, 321 S.W.3d at 241. Thus, Chaffin’s affidavit established that Pharia incorporated the third-party documents, fulfilling the first prong. See id. at 242. Similarly, Chaffin’s reliance on the accuracy of the third-party documents to establish the existence and value of Wood’s debts establishes the second prong. See id. at 243. Finally, like the appellant in Simien, Wood does not attack the reliability or trustworthiness of any of Pharia’s underlying documents. See id. at 245 (“Simien does not attack the reliability of the records, but contends Unifund’s proof supporting the admission of the records is inadequate.”). Also like the appellee in Simien, the trustworthiness of the documents at issue here is supported by the fact that Pharia’s predecessors in interest must keep careful records of their customer’s debts or else their businesses would suffer or fail, and inaccurate records could result in civil or criminal penalties. See id. at 244 (citing, inter alia, Harris v. State, 846 S.W.2d 960, 963 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d)). Thus, the proof here meets the third prong.
Because Pharia’s trial exhibit satisfies the requirements for the admission of third-party business records and because the challenged affidavits satisfy the requirements of Rule 902(10), the trial court did not abuse its discretion in overruling Wood’s hearsay objections. See Tex. R. App. P. 902(10); Simien, 321 S.W.3d at 246. We overrule this portion of Wood’s second issue.
2. Conclusory Statements
Wood asserts that the Chaffin and Halpin affidavits are conclusory, and thus inadmissible. An affidavit is conclusory if it states a conclusion “without any explanation” or asks the fact-finder to “take my word for it.” Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A Ltd., 249 S.W.3d 380, 389 (Tex. 2008); see also Black’s Law Dictionary 308 (9th ed. 2009) (defining “conclusory” as “[e]xpressing a factual inference without stating the underlying facts on which the inference is based”).
Chaffin’s and Halpin’s affidavits offer sufficient explanations for their conclusions. The conclusions are based on the affiants’ personal knowledge as custodians of records for their employers. See McFarland v. Citibank (South Dakota), N.A., 293 S.W.3d 759, 762 (Tex. App.—Waco 2009, no pet.). The affidavits are also not conclusory because they substantially comply with Rule 902(10), and as such may properly serve to authenticate business records. See id. The trial court properly overruled Wood’s “conclusory” objection, and we overrule this portion of Wood’s second and third issues.
3. Best Evidence and Parol Evidence Rules
Wood contends that the Chaffin and Halpin affidavits violate the best evidence and parol evidence rules by stating that Pharia purchased Wood’s account. Although his brief is not clear on this point, Wood appears to argue that the affidavits impermissibly provide terms of the assignments in the chain of title of Wood’s account, when only the original document may provide such terms.
Under the best evidence rule, “[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required except as otherwise provided in these rules or by law.” Tex. R. Evid. 1002. The parol evidence rule bars consideration of extrinsic evidence that contradicts, varies, or adds to the terms of an unambiguous written agreement. Gary E. Patterson & Assocs. v. Holub, 264 S.W.3d 180, 197 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). We conclude above that the affidavits were offered as predicates for the introduction of business records; thus, they are not offered to prove the content of any writing or to contradict, vary, or add to the terms of any agreement. The affidavits do not violate the parol evidence or best evidence rules. Having found the trial court did not abuse its discretion in overruling Wood’s objections to Pharia’s trial evidence, we overrule Wood’s second issue.
C. The 2004 Agreement
In his fourth issue, Wood asserts that the trial court erred by admitting the 2004 Agreement as evidence. At trial, he contended that the 2004 Agreement was inadmissible because the 2004 Agreement was not the original agreement in effect when Wood opened his credit card account in 2000. Wood argued to the trial court that the 2004 Agreement was objectionable on best evidence grounds and because Pharia had failed to lay the proper predicate for its admission. However, on appeal, Woods does not argue that the 2004 Agreement was improperly admitted. Neither his contentions in his brief nor his citations to authority relate to whether the 2004 Agreement was admissible. We conclude that Wood has not adequately briefed any admissibility complaints regarding the 2004 Agreement. See Tex. R. App. P. 38.1(i). We overrule his fourth issue.
Sufficiency of the Evidence
In his third, fifth, sixth, seventh, eighth, and ninth issues, Wood challenges the legal and factual sufficiency of the evidence to support the trial court’s judgment.
A. Standards of Review
“The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). “[L]egal-sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.” Id. “If the evidence . . . would enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so.” Id. at 822. “A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement.” Id. Although the reviewing court must consider evidence in the light most favorable to the verdict, and indulge every reasonable inference that would support it, if the evidence allows only one inference, neither jurors nor the reviewing court may disregard it. Id.
In determining factual sufficiency, this Court weighs all the evidence, both supporting and conflicting, and may set the finding aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Comm’n of Contracts v. Arriba Ltd., 882 S.W.2d 576, 582 (Tex. App.—Houston [1st Dist.] 1994, no writ). In an appeal from a bench trial, we may not invade the fact-finding role of the trial court judge, who alone determines the credibility of the witnesses, the weight to give their testimony, and whether to accept or reject all or any part of that testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580–81 (Tex. App.—Houston [1st Dist.] 1997, pet denied).
B. Pharia’s Ownership of Wood’s Account
In his third issue, Wood contends that because the Chaffin and Halpin affidavits should have been excluded, we should find the remaining evidence insufficient to prove Pharia’s ownership of Wood’s account. He asserts that without the testimony in the affidavits, there is no evidence that Pharia owns Wood’s account. Further, he contends that the evidence is insufficient to prove two links in the chain of ownership because the Authorization for Assignment is not itself an assignment, but merely an authorization, and because the Chase Bill of Sale did not specify Wood’s account as being transferred to Unifund Portfolio A. [3]
1. Affidavits
We note above that Pharia relied on Chaffin’s affidavit (and Halpin’s, to the extent her affidavit was necessary) as a predicate for the admission of business records, and that as such, it was admissible. See Tex. R. Evid. 803(6), 902(10). To the extent that Wood’s evidentiary objections are solely conditioned on the exclusion of the two affidavits, they are overruled. See Simien, 321 S.W.3d at 247.
2. Authorization for Assignment
The Authorization for Assignment expressly identifies itself as an assignment: “THIS ASSIGNMENT is effective as of July 6, 2001, between UNIFUND PORTFOLIO A, LLC . . . and UNIFUND CCR PARTNERS[.]” The Authorization for an Assignment is accompanied by a line item listing Wood’s account.
Courts construe an unambiguous contract as a matter of law. Dynegy Midstream Servs., L.P. v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009). The title of an instrument may be considered in determining its meaning. E.H. Perry & Co. v. Langbehn, 113 Tex. 72, 80, 252 S.W. 472, 475 (1923). However, the title is not considered in a vacuum; we are obligated to examine the entire contract and give effect to all provisions. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). Our primary concern is to determine the true intent of the parties. Id. We conclude that, taking the contract as a whole, the title of the instrument, the above-quoted language, and the express inclusion of Wood’s account all indicate that the intent of the Authorization for Assignment was to assign Wood’s account from Unifund Portfolio A to Unifund CCR Partners.
3. The Chase Bill of Sale
Wood contends that because the Chase Bill of Sale did not include an attachment indicating that Wood’s account was among those transferred to Unifund Portfolio A, there is no evidence or insufficient evidence that Pharia owns Wood’s account. Pharia points to the evidence contained in its trial exhibit and to Wood’s failure to introduce any contrary evidence, arguing that there is more than a scintilla of evidence to support the judgment and that the judgment is not so contrary to the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust.
In Eaves v. Unifund CCR Partners, the El Paso Court of Appeals considered facts similar to this case in the context of a standing challenge. See Eaves v. Unifund CCR Partners, 301 S.W.3d 402, 404–05 (Tex. App.—El Paso 2009, no pet.). There, as here, the defendant debtor asserted that there was no evidence that his credit card account had ever been sold from the original issuer to Unifund Portfolio A. Id. at 404. Also, as here, the plaintiff creditor introduced a “Bill of Sale” from the card’s issuer that referred to a list of assigned accounts, but the list itself was not offered into evidence. Id. at 405. Stating that “we do not condone [Unifund CCR Partners’] failure to present the agreement listing [the defendant’s] account,” the El Paso court nevertheless observed that the totality of the evidence—including the bill of sale to Unifund Portfolio A, but more significantly including the assignment from Unifund Portfolio A to Unifund CCR Partners “that expressly assigned the rights to collect on the account,” affidavit testimony, and a document demanding payment to Unifund CCR Partners—was sufficient to establish the plaintiff’s standing to collect on the debt. Id. at 404–05.
While our standard of review under legal and factual sufficiency challenges differs from the standard applied in a standing challenge, we conclude, as did our sister court, that the totality of the evidence supports the trial court’s judgment. Here, as in Eaves, Pharia introduced assignments subsequent to the Chase Bill of Sale that specifically reference Wood’s account. Similarly, the demand letter asserts that Wood must pay Pharia. This evidence supports the inference that Pharia owns Wood’s account, and all the evidence taken together does not render the trial court’s judgment clearly wrong or manifestly unjust. See City of Keller, 168 S.W.3d at 822; Nordstrom, 965 S.W.2d at 580–81; Cain, 709 S.W.2d at 176. The evidence is therefore legally and factually sufficient to prove the assignment from Chase to Unifund Portfolio A. Because we have determined that the evidence is also sufficient to prove a transfer between Unifund Portfolio A and Unifund CCR Partners, and because Wood has not challenged the sufficiency of the evidence to prove a transfer from Unifund CCR Partners to Pharia, we conclude that the evidence is sufficient to prove Pharia’s ownership of Wood’s account.
C. Terms of the Agreement Between the Parties
In his fifth, sixth, and seventh issues, Wood asserts that the 2004 Agreement is insufficient to support a judgment against him for breach of contract. He contends that because Pharia’s trial exhibit contains the 2004 Agreement but not the original agreement in effect when Wood opened his credit card account, there is no or insufficient evidence of the terms of the original contract. Thus, he argues that the 2004 Agreement must be a modification of the original contract and that there is no or insufficient evidence that the original contract permitted unilateral modifications. In the alternative, he argues in his sixth and seventh issues that there is no evidence of interest rates and late fees to be charged because the 2004 Agreement does not include a referenced “Rates and Fees” table, and that the absence of these terms renders the 2004 Agreement non-binding.
1. Modification
Pharia contends that the 2004 Agreement is not a modification of the original contract, but is itself the contract sued upon. As Pharia pointed out to the trial court, the first section of the 2004 Agreement states:
You will be bound by this agreement if you or anyone authorized by you use your account for any purpose, even if you don’t sign your card. Whether you use your account or not, you will be bound by this agreement unless you cancel your account within 30 days after receiving your card and you have not used your account for any purpose.
Pharia, therefore, argues that Wood’s continued use of his credit card after the 2004 Agreement constituted acceptance of the agreement’s terms. Pharia further argues that we may affirm even in the absence of an express list of rates and fees.
Continuing use of a credit card and making payments on the account for purchases and charges reflected on monthly statements manifests the cardholder’s intent that the terms of a credit card agreement become effective. Winchek v. Am. Exp. Travel Related Servs. Co., 232 S.W.3d 197, 204 (Tex. App.—Houston [1st Dist.] 2007, no pet.). This Court has held that this is so even in the absence of evidence that the credit card agreement was actually delivered to the cardholder. Id. Pharia’s trial exhibit establishes Wood’s continued use of his credit card following the 2004 Agreement, which expressly stated that Wood would be bound upon further use of his account. See id. Thus, the 2004 Agreement was not a unilateral modification of the original credit card agreement.
In addition, the trial court specifically asked Pharia’s trial counsel about the 2004 Agreement and the original agreement in place when Wood opened his credit card account, and Pharia’s counsel explained that Pharia offered the 2004 Agreement as a contract in its own right, not as a modification. Wood has failed to address or acknowledge the only reasoning presented to the trial court in support of its ruling on his objection to the absence of the original agreement. We conclude that a reasonable person could determine that the 2004 Agreement was the operative contract between the parties and that such a finding is not clearly wrong or manifestly unjust. We overrule Wood’s fifth issue.
2. Interest Rates and Fees
In his sixth and seventh issues, Wood contends that because the 2004 Agreement does not specify interest rates or fees, it fails as a contract for want of material terms. In Winchek, a similar argument failed. There the plaintiff argued that the interest rates and finance charges were “fatally indefinite.” Winchek, 232 S.W.3d at 204. In Winchek, this Court considered various data reflected in the credit card statements on the defendant’s account and found the evidence sufficient to conclude that “the Agreement was sufficiently definite to enable a court to determine the rights and responsibilities of each party and that [the debtor’s] conduct in using the card and making payments on the account for the purchases and charges reflected on her monthly billing statements shows that she understood her obligations to Amex and that a contract was formed.” Id. Here, similarly, Pharia has offered numerous and detailed credit card statements to accompany the 2004 Agreement. These statements reflect the various finance charges and interest rates imposed and show that Wood continued to use the card and make occasional payments. These facts support the inference that Wood agreed to the various interest rates and finance charges, and Wood has introduced no evidence to the contrary. We conclude that the evidence is legally and factually sufficient to support the trial court’s judgment based on the 2004 Agreement. We overrule his sixth and seventh issues.[4]
D. Damages
In his eighth issue, Wood contends that there was no evidence or insufficient evidence supporting Pharia’s calculation of damages because there was no evidence of interest rates or finance charges.[5] In Simien, this Court held that affidavit testimony as to the total amount owed was legally and factually sufficient to support the trial court’s award. Simien, 321 S.W.3d at 248. Here, exhibits attached to the Halpin affidavit and to the Pharia Bill of Sale indicated that Wood owed $9,504.80 on his account at the time Pharia purchased the account. Wood presented no evidence that controverted this amount. The trial court awarded $9,504.80. We conclude that the trial court’s damage award is supported by legally and factually sufficient evidence and overrule Wood’s eighth issue. See id. Furthermore, since Wood’s ninth issue merely restates Wood’s second through eighth issues, all of which we have overruled, we accordingly overrule Wood’s ninth issue.
Fair Debt Collection Practices Act
In his tenth issue, presupposing a favorable ruling on his first nine issues, Wood contends that because Pharia failed to prove the chain of title from Chase to Pharia, and because Pharia failed to prove a contract as to interest rates, that Pharia is in violation of the United States Fair Debt Collection Practices Act. Because we have held that the evidence was legally and factually sufficient as to chain of title and interest rates, we overrule Wood’s tenth issue. See Simien, 321 S.W.3d at 247 (overruling conditional appellate issues).
Findings of Fact and Conclusions of Law
In his first issue, Wood asserts that the trial court erred by not filing findings of fact and conclusions of law. Wood timely requested findings of fact and conclusions of law and properly filed a notice of past due findings of fact and conclusions of law. See Tex. R. Civ. P. 296, 297. The trial court, therefore, had a duty to file findings of fact and conclusions of law. Elliott v. Kraft Foods N. Am., Inc., 118 S.W.3d 50, 54 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
Generally, the remedy for a trial court’s failure to file properly-requested findings of fact and conclusions of law is an abatement of the appeal with an order that the trial court correct its omission. See Elliott, 118 S.W.3d at 55–56; see also Sheik v. Sheik, 248 S.W.3d 381, 386 (Tex. App.—Houston [1st Dist.] 2007, no pet.). We need not abate, however, if the lack of findings and conclusions is harmless. Elliott, 118 S.W.3d at 54.
Wood’s primary challenges are legal in nature, and his sufficiency-of-the-evidence challenges are all conditioned on his legal issues. See Rollins v. Am. Exp. Travel Related Servs. Co., 219 S.W.3d 1, 6–7 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (where relevant facts are undisputed and appeal asserts legal issues, lack of findings and conclusions not harmful). Wood presented no evidence contradicting Pharia’s evidence, so there are no factual issues in dispute. See id. Finally, our sister courts have held that where, as here, there is only a single ground of recovery or a single defense in the case, an appellant is not harmed by a failure to file findings and conclusions because he is not required to guess the reasons for a trial court’s judgment. Bluebonnet Fin. Assets v. Miller, No. 08-07-00282-CV, 2009 WL 1177095, at *2 (Tex. App.—El Paso May 1, 2009, no pet.) (citing Larry F. Smith, Inc. v. Weber Co., Inc., 110 S.W.3d 611, 614 (Tex. App.—Dallas 2003, pet. denied)). Because Wood was not harmed by the trial court’s failure to file findings of fact and conclusions of law, we overrule Wood’s first issue.
Conclusion
Having overruled Wood’s ten issues, we affirm the judgment of the trial court.
Elsa Alcala
Justice
Panel consists of Justices Jennings, Alcala, and Sharp.
[1] Wood asserts that he objected in writing as well as orally. The record indicates that Wood provided the judge with written objections, but those objections were not made part of the record on appeal. Wood attached a purported copy of his written objections as an appendix to his brief. We may not consider documents that are not formally included in the record on appeal. Sowell v. Kroger Co., 263 S.W.3d 36, 38 (Tex. App.—Houston [1st Dist.] 2006, no pet.). We, therefore, may not consider Wood’s written objections in our review.
[2] Generally, when a party presents multiple issues on appeal, an appellate court should first address those issues that would afford the appellant the greatest relief. See Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999). Here, however, because Wood’s no-evidence issues presume favorable holdings on his challenges to the admission of evidence, we address the evidentiary issues first. See Simien v. Unifund CCR Partners, 321 S.W.3d 235, 239, 246–47 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (addressing objections to admission of evidence before considering conditional no-evidence issues).
[3] Pharia argues that Wood has admitted all assignments of his account by failing to answer with a sworn denial in accordance with Rule 93(8) of the Texas Rules of Civil Procedure. See Tex. R. App. P. 93(8). Rule 93(8) refers to the denial of the “genuineness” of an assignment—referring to issues such as execution, authority of the assignor, and the genuineness of signatures. Vahlsing v. Collier Cobb & Assocs., 560 S.W.2d 117, 118 (Tex. App.—Dallas 1977, no writ). Here, Wood asserts that the evidence is insufficient to prove the existence of an assignment; such a challenge does not require a sworn denial. See id.
[4] The cases Wood relies on here are not to the contrary. Williams v. Unifund CCR Partners and Tully v. Citibank came before the courts of appeals following a summary judgment, requiring a different standard of review than this appeal, which follows a trial on the merits. See Williams v. Unifund CCR Partners, assignee of Citibank, 264 S.W.3d 231, 232 (Tex. App.—Houston [1st Dist.] 2008, no pet.); Tully v. Citibank (S.D.), N.A., 173 S.W.3d 212, 215 (Tex. App.—Texarkana 2005, no pet.).
[5] Pharia argues that because Wood did not raise this issue at trial, he cannot now assert it on appeal. Following a bench trial, as here, sufficiency challenges may be raised for the first time on appeal. Tex. R. App. P. 33.1(d); see also SAVA gumarska in kemijska industria d.d. v. Advanced Polymer Scis., Inc., 128 S.W.3d 304, 317 (Tex. App.—Dallas 2004, no pet.).