Opinion issued March 1, 2012

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00831-CV

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Andrew Smith, Appellant

Federated Financial Corporation of America, Appellee

On Appeal from the County Civil Court at Law No. 3

Harris County, Texas

Trial Court Case No. 927,442

MEMORANDUM OPINION

Appellee, Federated Financial Corporation of America (“Federated”), sued appellant, Andrew Smith, after Smith defaulted on his obligation to make monthly payments on a credit account issued by Advanta Bank Corporation (“Advanta”) and subsequently purchased by Federated. Following a bench trial, the trial court entered judgment against Smith and awarded Federated attorney’s fees. In five issues, Smith argues that: (1) the trial court erred in denying his motion to dismiss based on the cardholder agreement’s forum-selection clause specifying Utah as the only forum for litigation; (2) the trial court erred in admitting hearsay documents; (3) the trial court erred in admitting the affidavit of Federated’s designated agent, Amanda Swift, because it failed to show that she had the requisite personal knowledge; (4) the trial court erred in admitting Swift’s business records affidavit because certain documents were incomplete and unreliable; and (5) the evidence was factually insufficient to support the judgment.

We modify and affirm as modified.

Background

Smith entered into a cardholder agreement with Advanta in which Advanta extended a line of credit to Smith. Smith defaulted on his obligation to make payments under the terms of the cardholder agreement in October 2004. Advanta then sold its interest in the account to Federated.

On October 14, 2008, Federated sued Smith in Harris County for breach of the cardholder agreement and sought $32,054.20 in principal and interest owed on the account and $10,684.73 in attorney’s fees.

On November 12, 2008, Smith answered by filing a general denial.

On January 30, 2009, Federated moved for summary judgment seeking the amount due on the account and attorney’s fees. Federated supported its motion by attaching the affidavit of Amanda Swift, Federated’s designated agent, who averred that the attached documents had been kept by Federated in the regular course of its business. Federated attached a copy of the “Contractual Forward Flow Bill of Sale and Assignment” in which Advanta assigned its interest in Smith’s account to Federated, Smith’s application for the “MasterCard Executive Business Card R.S.V.P.” in his own name as the owner of A & T’s Auto and Truck Services, multiple account statements from Advanta reflecting Smith’s use of the card, and a copy of the Advanta Business Card Agreement (the “Agreement”) between Advanta and Smith. The Agreement contained the following provisions:

In this Agreement “you,” “your,” “yours,” and “Cardmember” mean the person named on the Advanta Business Card, the Signing Individual, the Business, and any other legal entity or person who is contractually liable for, has signed or submitted an application for, has used or has permitted others to use a Card or the Account. . . . “Issuer,” “we,” “us,” and “our” refer to Advanta Bank Corp., its successors and assigns. . . .

By applying to use for credit . . . you represent that you . . . agree to be liable for all charges to the Account as provided in this Agreement [and] agree to be bound by the terms and conditions of this Agreement. . . .

. . . .

31. CONTROLLING LAW AND JURISDICTION: This Agreement shall be governed solely by and interpreted entirely in accordance with the laws of the State of Utah, except as (and to the degree that) such laws are superseded by the banking or other laws of the United States, regardless of where you reside. We will process the Account application, make the decision to open the Account and advance credit for you from our Utah offices. You agree that all terms, conditions, and other provisions relating to the method of determining the balance upon which the Interest rate or finance charges are applied, and all other terms of this Agreement, shall be deemed to be material to the determination of the interest rate. YOU CONSENT TO PERSONAL JURISDICTION IN THE STATE AND FEDERAL COURTS IN UTAH AND AGREE THAT ANY LAWSUIT PERTAINING TO THE ACCOUNT MUST BE BROUGHT ONLY IN SUCH COURTS IN UTAH, REGARDLESS OF WHO FILES THE SUIT, AND MAY BE MAINTAINED ONLY IN THOSE COURTS UNLESS AND UNTIL ANY PARTY ELECTS ARBITRATION PURSUANT TO THE ARBITRATION PROVISION IN THIS AGREEMENT.

On February 20, 2009, Smith responded to Federated’s motion for summary judgment and argued that he had a right to choose to arbitrate any dispute under the cardholder agreement, that he “ha[d] disputed the debt under oath in this lawsuit and ha[d] demanded arbitration,” and that Federated, as the assignee of Advanta, had failed to abide by the terms of the cardholder agreement with respect to arbitration. Smith also argued that there were material facts at issue in the lawsuit and that he was “entitled to a trial on the merits of this claim, subject to the parties’ agreement to arbitrate.” Smith also challenged the sufficiency of Swift’s affidavit, arguing that her assertion of personal knowledge of the facts contained in the motion for summary judgment and her affidavit based on a “review of the file in this matter” was inadequate because she was not an employee of Advanta, the entity that had created and maintained the documents attached to the affidavit.

The trial court did not rule on the motion for summary judgment. The case was originally set for trial on May 19, 2009, but the setting was eventually postponed.

On December 15, 2009, Federated filed its “Notice of Filing Business Record Affidavit” of Amanda Swift. The affidavit stated:

My name is Amanda Swift. I am over 21 years of age, am of sound mind, capable of making this affidavit, and have personal knowledge of the facts herein stated.

I am a designated agent and have personal knowledge of the books and records of the Plaintiff concerning this claim against the Defendant. Attached hereto are 25 pages of records from the files of FEDERATED FINANCIAL CORPORATION OF AMERICA. These said 25 pages of records are kept by FEDERATED FINANCIAL CORPORATION OF AMERICA in the regular course of its business as permanent records of the company and it was in 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 information thereof to be complete in such attached memorandum or record; and the memorandum or record was made at or near the time of the act, event, or condition recorded or indicated in said record, or reasonably soon thereafter. The records attached hereto are the originals or exact duplicates thereof of the records and documents maintained by Plaintiff pertaining to the account of ANDREW SMITH, 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 $32,054.20 as of September 29, 2008, after giving credit for all payments and credits.

I have read the above and foregoing affidavit, and within my personal knowledge each fact stated herein is true and correct.”

Attached to the affidavit were the following business records: an electronic printout of various details relating to Smith’s account; the “Contractual Forward Flow Bill of Sale and Assignment,” assigning certain Advanta accounts to Federated; an affidavit of account statement by vice-president of Federated Joan Flees providing that Smith’s account was owned by Federated, was overdue in the amount of $32,054.20, and that there were no uncredited payments, counterclaims, or offsets against that debt; Smith’s signed “MasterCard Executive BusinessCard R.S.V.P.” application; multiple account statements issued by Advanta reflecting Smith’s use of the credit card; and the “Advanta Business Card Agreement” providing the terms and conditions of the card’s use.

The case was again set for trial on February 22, 2010, and it was reset a third time to March 1, 2010, and then to May 10, 2010.

On March 2, 2010, Smith moved to dismiss the suit, arguing that “pursuant to the agreement of the parties, jurisdiction and venue are restricted to the State of Utah.” He cited the portion of the Agreement providing:

This agreement shall be governed solely by and interpreted entirely in accordance with the laws of the State of Utah, . . . . YOU CONSENT TO PERSONAL JURISDICTION IN THE STATE AND FEDERAL COURTS IN UTAH AND AGREE THAT ANY LAWSUIT PERTAINING TO THE ACCOUNT MUST BE BROUGHT ONLY IN SUCH COURTS IN UTAH, REGARDLESS OF WHO FILES THE SUIT, AND MAY BE MAINTAINED ONLY IN THOSE COURTS. . . .

He made no further argument and did not attach a complete draft of the Agreement.

In its response to the motion to dismiss, Federated argued that Smith had subjected himself to the trial court’s jurisdiction, and, alternatively, that the trial court should transfer the case to Utah rather than dismissing it. The trial court denied the motion to dismiss on April 5, 2010, without stating any ground for its ruling.

Smith then amended his answer, again asserting a general denial and adding the affirmative defense that Federated had failed to meet conditions precedent to filing suit because it was required to bring the suit in Utah and because it was required to arbitrate its cause of action.

On August 11, 2010, Smith filed his objections to Federated’s business records affidavit, arguing that the affidavit failed to state that the affiant, Swift, had personal knowledge of the manner in which Advanta’s records were prepared; that it failed to state that Swift was the same person who had personal knowledge of the acts, events, or conditions recorded; that some of the records were incomplete or referred to other documents or definitions which were not included in the records; and that the “Mastercard Executive Business Card RSVP Agreement [was] not complete.”

The case proceeded to a bench trial on August 23, 2010. The trial court overruled Smith’s objections to Swift’s affidavit and Federated’s evidence. Smith also argued at trial:

[Smith]: I would like to show a condition precedent of the contract is arbitration. . . .

[Trial court]: Which is waived by agreeing to go today, and you already agreed that you were going to waive it.

[Smith]: Okay. Another condition precedent under their contract is that any lawsuit must be brought in the state of Utah. So welcome to Utah.

[Trial court]: And you preserved that error?

[Smith]: I have an affirmative defense on file, yes, Your Honor. It’s a condition precedent.

The trial court entered judgment against Smith, awarding Federated $32,054.20 plus pre- and post-judgment interest and attorney’s fees in the amount of $10,684.73. Smith moved to modify the judgment, arguing that the trial court had reduced the attorney’s fees award to $6,000 at trial, but it had awarded more than $10,000 in its judgment, and that there was no evidence supporting the award of pre-judgment interest.

Forum-Selection Clause

In his first issue, Smith argues that the trial court erred in denying his motion to dismiss the case because it was not filed in compliance with the mandatory forum-selection provision in the cardholder agreement. Federated argues that Smith waived this complaint[1] and that the provision he cited was not mandatory.

We review the enforcement of a forum-selection clause for an abuse of discretion. Phoenix Network Techs. (Europe) Ltd. v. Neon Sys., Inc., 177 S.W.3d 605, 610 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Enforcement of forum-selection clauses is mandatory unless the party opposing enforcement “clearly show[s] that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.” In re AIU Ins. Co., 148 S.W.3d 109, 112 (Tex. 2004) (orig. proceeding) (citing The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 92 S. Ct. 1907, 1916 (1972)). “[A] clause would come within these exceptions if enforcement would contravene a strong public policy of the forum in which suit was brought, or when the contractually selected forum would be seriously inconvenient for trial.” Id.

However, the right to enforcement of forum-selection clauses can be waived. See id. at 120–21. A party waives a forum-selection clause by substantially invoking the judicial process to the other party’s detriment or prejudice. In re ADM Investor Servs., Inc., 304 S.W.3d 371, 374 (Tex. 2010) (orig. proceeding). There is a strong presumption against such waiver. Id. Waiver requires intent, either the intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. In re Gen. Elec. Capital Corp., 203 S.W.3d 314, 316 (Tex. 2006) (per curiam) (orig. proceeding).

The Texas Supreme Court has treated the waiver of forum-selection clauses as analogous to the waiver of arbitration clauses, as an arbitration clause is a type of forum-selection clause, and it has adopted the test outlined in Perry Homes v. Cull to analyze waiver of forum-selection clauses. See, e.g., ADM Investor Servs., 304 S.W.3d at 374; AIU Ins. Co., 148 S.W.3d at 115–16; see also Perry Homes, 258 S.W.3d 580, 597 (Tex. 2008) (orig. proceeding) (adopting test for determining whether party waived arbitration). In Perry Homes, the supreme court held that “prejudice” in this context means “inherent unfairness [caused by] a party’s attempt to have it both ways by switching between litigation and arbitration to its own advantage.” 258 S.W.3d at 597. The determination of whether waiver occurred must be made on a case-by-case basis based on the totality of the circumstances. Id. at 591.

Perry Homes listed some factors to be considered in a waiver analysis, including: (1) whether the movant was the plaintiff (who chose to file in court) or the defendant (who merely responded); (2) how long the movant delayed before seeking arbitration; (3) whether the movant knew of the arbitration clause all along; (4) how much pretrial activity related to the merits rather than arbitrability, jurisdiction, or standing; (5) how much time and expense had been incurred in litigation; (6) whether the movant sought or opposed arbitration earlier in the case; (7) whether the movant filed affirmative claims or dispositive motions (sought judgment on the merits); (8) what discovery would be unavailable in arbitration; (9) whether activity in court would be duplicated in arbitration; (10) when the case was to be tried; and (11) how much discovery had been conducted, who initiated it, and how much of it would be useful in arbitration. Id. at 591–92. No single factor is dispositive to the inquiry into whether a party has waived its right to enforce an arbitration clause. Id. at 591.

While some of these factors do not fit as well into an analysis of waiver of a forum-selection clause, they provide a paradigm for determining whether Smith waived his right to enforce the forum-selection clause under the totality of the circumstances in this case. Here, Smith waited more than sixteen months after Federated filed suit to raise the issue of the forum-selection clause. At that point, he had already filed an answer, responded to Federated’s motion for summary judgment, and raised the issue of arbitration. Furthermore, discovery was completed and the case had been set for trial on more than one date before he filed his motion to dismiss. The motion was denied by the trial court, and Smith took no further action to pursue his argument that he was entitled to a trial in Utah under the terms of the forum-selection clause; instead, he proceeded to a trial on the merits. In fact, the statements of the trial court and Smith’s counsel during the bench trial indicated that Smith acquiesced to the trial in Harris County at some point after he filed his motion to dismiss.

Applying the Perry Homes factors to these facts, we conclude that while Smith, the movant, was the defendant below and merely responded to the suit filed against him, several of the other factors weigh against him. He waited more than sixteen months to assert his argument regarding the forum-selection clause, even though the clause was available in the agreement he himself had signed with Advanta; significant pretrial activity related to the merits of Federated’s claim had already taken place, including Federated’s motion for summary judgment, Smith’s own response to that motion, and all discovery; and significant time and expense has been incurred in litigating the merits of Federated’s claims, both at the time that Smith originally filed his motion to dismiss and again after a full trial on the merits had occurred. Thus, Federated was prejudiced. It invested significantly in the litigation process before Smith filed his motion to dismiss, and then, after Smith agreed to proceed with a Harris County trial, it participated in a trial on the merits and obtained a judgment against Smith.

Smith’s actions in attempting to pursue his forum-selection argument at a late stage in the litigation, then acquiescing to trial in Harris County without further pursuing his forum-selection argument, and then raising the complaint again after a trial had occurred demonstrate his “attempt to have it both ways by switching between litigation and [enforcing his forum-selection clause] to [his] own advantage.” Id. at 597. We conclude that Smith waived enforcement of the forum-selection clause by substantially invoking the judicial process to Federated’s detriment or prejudice and that his actions in pursuing this issue demonstrated intentional conduct inconsistent with claiming that right. See ADM Investor Servs., 304 S.W.3d at 374; Gen. Elec. Capital Corp., 203 S.W.3d at 316.

We overrule Smith’s first issue.

Evidentiary Complaints

In his second, third, and fourth issues, Smith complains about the trial court’s decision to admit Federated’s business records affidavit and business records. Specifically, Smith argues that the business records are hearsay documents, that Swift’s affidavit was inadequate because it failed to show that she had the requisite personal knowledge, and that certain documents were incomplete and unreliable.

A. Standard of Review

Evidentiary rulings are committed to the trial court’s sound discretion. Simien v. Unifund CCR Partners, 321 S.W.3d 235, 239 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007)). A trial court abuses its discretion when it acts without reference to any guiding rules and principles. Id. We must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling. Id. (citing Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998)).

B. Admission of Business Records Affidavit

Smith argues that the trial court erred in admitting hearsay documents because Swift’s affidavit “failed to prove up the prerequisites of [Texas Rules of Evidence] 803(6) or (7).” He argues that Swift did not properly assert personal knowledge of the attached records, that she did not assert any knowledge of Advanta’s records, and that she did not “refer to the purchase and assignment of the account from Advanta to Federated.”

“‘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. Simien, 321 S.W.3d at 240 (citing 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 an 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); Simien, 321 S.W.3d at 240. 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).” [2] Tex. R. Evid. 902(10)(a). Rule 902(10) also provides a form for the affidavit and states that 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.

A document authored or created by a third party may be admissible as business records of a different business if: (1) the document is incorporated and kept in the course of the testifying witness’s business; (2) that business typically relies upon the accuracy of the contents of the document; and (3) the circumstances otherwise indicate the trustworthiness of the document. Simien, 321 S.W.3d at 240–41 (stating that previous case law of this Court relied on federal authorities construing Federal Rule of Evidence 803(6)) (citing Bell v. State, 176 S.W.3d 90, 92 (Tex. App.—Houston [1st Dist.] 2004, no pet.) and Harris v. State, 846 S.W.2d 960, 963–64 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d)). We apply these three factors in determining whether the trial court properly admitted Swift’s affidavit. See id. at 240–41.

Swift’s affidavit stated, in relevant part:

1. Incorporated and Kept in the Course of Business

In Simien, this Court analyzed the admissibility of an affidavit in which the affiant stated that the attached documents were “kept by [Unifund] in the regular course of its business as permanent records of the company.” Id. at 242. The affidavit also referred to the defendant’s records by stating that they had “been maintained in files under [the affiant’s] supervision and control.” Id. The affiant in Simien specified that he had reviewed the file, was the designated agent for the file, and had personal knowledge of the books and records concerning the specific defendant. Id. The Simien court concluded that this affidavit sufficiently showed that Unifund had incorporated the records of the original debt-holder. Id.

Similarly, here, Swift’s affidavit stated that she was the “designated agent and [has] personal knowledge of the books and records of [Federated] concerning this claim against [Smith].” She further averred that the attached documents were kept by Federated “in the regular course of its business as permanent records of the company.” Thus, the language used by Swift is substantially similar to that approved by this Court in Simien, and it tracks the language in the form promulgated by Rule 902(10)(b). See Tex. R. Evid. 902(10)(b); Simien, 321 S.W.3d at 242. We conclude that the affidavit sufficiently shows that Federated incorporated Advanta’s records and kept them in the regular course of its business. See Simien, 321 S.W.3d at 242.

2. Reliance on the Accuracy of the Documents

Smith argues that “[n]othing in the Swift affidavit indicates how she could attest to the veracity, authenticity or reliability of Advanta’s records now held by Federated.” However, this Court held in Simien that such a statement was not required. See id. at 243. The Simien court observed that the affidavit provided that the affiant had personal knowledge of the books and records concerning the defendant, that he had maintained the files under his supervision and control, and that the account remained unpaid in the amount stated in the affidavit. Id. The Court then held:

Similar to the documents in Bell that showed a settled claim, here Unifund relied on the accuracy of the documents to determine the existence and value of Simien’s debt that is now due to Unifund. We hold the second factor in Bell is satisfied because the evidence shows Unifund reasonably relied upon the accuracy of the contents of the documents it received from Citibank.

Id.

Here, Swift’s affidavit likewise shows that she had personal knowledge of Smith’s file, that she was Federated’s designated agent for those records, and that Smith’s account remained unpaid in the amount stated in the affidavit. Thus, the evidence here demonstrates that Federated reasonably relied upon the accuracy of the contents of the documents that it received from Advanta. See id.

3. Circumstances Indicating Trustworthiness of the Documents

In Simien, we observed that financial institutions like Citibank or Advanta “must keep careful records of its customer’s credit card debt, otherwise its ‘business would greatly suffer or even fail.’” Id. at 244 (quoting Harris, 846 S.W.2d at 963). We further observed that “failure to keep accurate records could result in criminal or civil penalties.” Id. (citing Tex. Fin. Code Ann. § 392.304(a)(8) (Vernon 2006) (prohibiting misrepresentation of amount of consumer debt), Tex. Fin. Code Ann. § 392.402 (Vernon 2006) (providing criminal penalties for violation of Chapter 392 of Texas Finance Code), Fair Debt Collection Practices Act, 15 U.S.C.S. § 1692e(2)(a) (2005) (prohibiting misrepresentation of amount of debt), and 15 U.S.C.S § 1692l (2005) (providing for administrative enforcement of Fair Debt Collection Practices Act)). We concluded, “These circumstances provide an indication of trustworthiness of the Citibank documents.” Id.

We conclude that those same circumstance also provide an indication of the trustworthiness of Advanta’s documents, as Advanta is in a situation identical to that of Citibank in Simien.

Thus, we conclude that the trial court did not err in determining that the business records affidavit was admissible and that the documents attached were accurate and trustworthy.

We overrule Smith’s second, third, and fourth issues.

C. Completeness and Sufficiency of the Evidence

In his fifth issue, Smith argues that the trial court erred because the documents attached to the business records affidavit were incomplete and were insufficient to support the judgment against him.

In reviewing the factual sufficiency of the evidence, we must examine the evidence that both supports and is contrary to the judgment. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). A judgment is factually sufficient unless it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). To prevail on a breach of contract claim, a plaintiff must prove the following essential elements: (1) the existence of a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the contract by the defendant, and (4) damages sustained as a result of the breach. Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

Federated presented factually sufficient evidence to establish the essential elements of its breach of contract claim.

1. Existence of a Valid Contract

Parties form a binding contract when the following elements are present: (1) an offer, (2) an acceptance in strict compliance with the terms of the offer, (3) meeting of the minds, (4) each party’s consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. Id. at 202. To be enforceable, a contract must be sufficiently certain to enable a court to determine the rights and responsibilities of the parties. Id. (citing T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992)).

Federated provided Smith’s signed application for the credit card and the accompanying terms and conditions issued by Advanta. Thus, Federated presented evidence of an offer, Smith’s acceptance of the terms of the offer, a meeting of the minds and consent to the essential terms, and execution and delivery of the contract with the intent that it be mutual and binding. Federated also presented account statements reflecting that Smith accepted the card and used it, further demonstrating the existence of a valid agreement. See Id. at 204 (stating that delivery is shown when parties manifest intent through their actions and words that contract become effective) (citing Hay v. Citibank (South Dakota) N.A., No. 14-04-01131-CV, 2006 WL 2620089, at *3 (Tex. App.—Houston [14th Dist.] Sept. 14, 2006, no pet.) (mem. op.) (holding that use of credit card and payments on account demonstrate existence of contract)).

Finally, Federated presented the “Contractual Forward Flow Bill of Sale and Assignment,” assigning certain Advanta accounts to Federated, and the affidavit of Joan Flees, vice-president of Federated, providing that Smith’s account is owned by Federated. Thus, Federated presented evidence demonstrating its own interest in the Agreement. See Jackson v. Thweatt, 883 S.W.2d 171, 174 (Tex. 1994) (“[A]n assignee receives the full rights of the assignor . . . .”).

Smith argues that the business card application he signed refers to “terms and conditions elsewhere not contained in the portion containing [Smith’s] signature.” However, the “terms and conditions” of the credit card’s issuance were provided in the document entitled “Advanta Business Card Agreement.” Smith cites no authority, nor could we find any, indicating that the terms are required to appear in the same portion of the agreement as the defendant’s signature. See DeWitt Cnty. Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 102 (Tex. 1999) (“Under generally accepted principles of contract interpretation, all writings that pertain to the same transaction will be considered together, even if they were executed at different times and do not expressly refer to one another.”); DeClaire v. G & B McIntosh Family Ltd. P’ship, 260 S.W.3d 34, 44 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (stating that contract can be effective if signed by only one party if other party accepts by his acts, conduct, or acquiescence in the terms of the contract).

Smith also argues that the record contained different versions of the cardholder agreement and the assignment from Advanta to Federated. However, only one version of each of these two documents was attached to the business records affidavit and admitted during trial, and Smith himself did not present any other evidence of the alleged terms of the credit card agreement during trial. Any other documents appearing in the record as attached to pretrial motions or responses are irrelevant for sufficiency purposes. See, e.g., Canutillo Indep. Sch. Dist. v. Olivares, 917 S.W.2d 494, 499 (Tex. App.—El Paso 1996, no pet.) (“In reviewing a factual sufficiency challenge, . . . this Court considers and weighs all the evidence presented at trial.”) (emphasis added) (citing Lofton v. Tex. Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986)).

Finally, Smith argues that key terms in the assignment from Advanta to Federated—“funding tape” and “cut-off date”—were missing and that the record contained nothing that specifically demonstrated that the Smith account was one that was assigned. However, as we have already discussed, the “Contractual Forward Flow Bill of Sale and Assignment,” assigning certain Advanta accounts to Federated, and Flees’s affidavit, providing that Smith’s account was owned by Federated, were sufficient to establish Federated’s interest in Smith’s account. Smith did not present any evidence contradicting this fact. Thus, we cannot conclude that the trial court’s determination that a valid contract existed between Smith and Federated was so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Cain, 709 S.W.2d at 176.

2. Performance and Breach

To prove an action for breach of contract, a plaintiff must also establish that it performed or tendered performance of its contractual obligations. See Winchek, 232 S.W.3d at 202. Here, Federated provided evidence in the form of Smith’s account statements that Advanta performed its contractual obligations by issuing credit to Smith that he used to purchase goods and services. Smith did not present any evidence indicating that Advanta failed to perform its contractual obligations.

Furthermore, Federated provided evidence of Smith’s breach of his obligation to pay for all charges to the account in the form of the Advanta account statements, and it provided Flees’s affidavit, providing that Smith’s account was owned by Federated, that it was overdue in the amount of $32,054.20, and that there were no uncredited payments, counterclaims, or offsets against that debt. See id. at 202 (providing that plaintiff must establish defendant’s breach of its obligation to prevail on breach of contract claim). Again, Smith did not present any evidence that he did not incur the charges to his account for which Federated, as Advanta’s assignee, now seeks repayment, or that he made payments or was due offsets for which he did not receive credit.

Thus, we conclude that the evidence was factually sufficient to support a conclusion that Federated established the elements of performance and breach.

3. Damages

Finally, to prevail on its breach of contract claim, Federated had to establish that it was damaged by Smith’s breach of the Agreement. See id. at 202. Federated provided evidence in the form of the Advanta account statements and Flees’s affidavit establishing that Smith’s account was past due in the amount of $32,054.20. Smith did not present any evidence that he owed a different amount of money or that he was entitled to any credits or offsets.

Thus, we conclude that the evidence was factually sufficient to support the damages awarded by the trial court to Federated. We hold that the evidence was factually sufficient to support the judgment. See Cain, 709 S.W.2d at 176.

We overrule Smith’s fifth issue.

Attorney’s Fees

In his sixth issue, Smith argues that the trial court erred in awarding Federated $10,034 in attorney’s fees when it had awarded only $6,000 in attorney’s fees at trial. Federated concedes that this portion of the trial court’s judgment was in error. We observe that the trial court, in its findings of fact filed post-trial, stated that Federated “is entitled to reasonable and customary attorney’s fees of $10,684.73.” However, this finding contained a handwritten notation striking through the original amount and stating “$6,000 as ordered by the court.” This notation is initialed by the trial court.

Thus, we sustain Smith’s sixth issue, and modify the judgment accordingly. See Tex. R. App. P. 43.2(b) (allowing appellate courts to modify judgments and affirm as modified).

Conclusion

We modify the judgment of the trial court to reflect that the proper amount of attorney’s fees is $6,000, and we affirm it as modified.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Bland, and Sharp.

[1] Federated actually argues that Smith “waived the forum selection clause because he failed to enforce it until after losing an agreed trial on the merits and Federated has been prejudiced as a result.” This is a misrepresentation of the record, which shows that Smith filed a pretrial motion to dismiss seeking to enforce the forum-selection clause in the Agreement. Federated also argued that Smith substantially invoked the judicial process, causing it prejudice, before he sought enforcement of the forum-selection clause. Federated pointed out that Smith “failed to mandamus the trial court’s denial of his Motion to Dismiss and instead agreed to waive arbitration and proceed with a trial on the merits.” However, the only indication of such an agreement appearing in the record is the trial court’s statement that Smith “agreed that [he] was going to waive” his arbitration request.

[2] Texas Rule of Evidence 803(7) provides:

Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

Tex. R. Evid. 803(7).

Andrew Smith v. Federated Financial Corporation of America

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