                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-12-00062-CV


Olga Murry                                §   From County Court at Law No. 2

                                          §   of Tarrant County (11-03149-2)
v.
                                          §   January 10, 2013

Dodeka, L.L.C.                            §   Opinion by Justice Meier

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS



                                       By_________________________________
                                         Justice Bill Meier
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00062-CV


OLGA MURRY                                                        APPELLANT

                                      V.

DODEKA, L.L.C.                                                     APPELLEE


                                   ----------

          FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY

                                   ----------

                         MEMORANDUM OPINION1

                                   ----------

      In this suit for breach of a credit card agreement, Appellant Olga Murry,

pro se, appeals from an adverse judgment rendered in favor of Appellee Dodeka,

L.L.C. We will affirm.

      Murry opened a credit card account with First USA Bank NA in December

2004 and promised to make monthly payments as specified for purchases or

advances made with the credit card.        Murry’s last payment on the account
      1
       See Tex. R. App. P. 47.4.


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occurred in October 2005, but a balance in the amount of $3,673.36 remained

due and owing. Dodeka acquired Murry’s account in November 2008—along

with the ―full power and authority to do and perform all acts necessary for the

collection, settlement, adjustment, compromise or satisfaction of the account‖—

and initiated a breach-of-contract action against her in the justice court to recover

the balance due on the account. Dodeka prevailed, and Murry appealed to the

county court for a trial de novo.    After a bench trial, the trial court signed a

judgment awarding Dodeka damages in the amount of $3,673.36 and attorneys’

fees in the amount of $600 and rendering a take nothing judgment against Murry

on her counterclaim for violation of the Fair Debt Collection Practices Act. Murry

appeals.

      In her first issue, Murry complains of a document contained in the clerk’s

record that has an ―un-redacted list of cases identifying other parties involve[d] in

a suit with [Dodeka] during the inception of this cause of action, leaving [her] to

believe there are inaccuracies in the record.‖ The document appears to be a

receipt generated by the justice court to show that certain filing fees were paid in

that court. Murry provides no argument or explanation or citation to any authority

demonstrating how the inclusion of this document in the record caused

―inaccuracies‖ in the remainder of the record. We overrule Murry’s first issue.

      In her second issue, Murry argues that the trial court erred by admitting

Plaintiff’s Exhibit 1—an ―Affidavit of Assignment, Damages, and Business

Records,‖ wherein Dodeka’s custodian of records affirms various details about


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several documents attached to the affidavit and, based on those documents,

opines that Murry owes Dodeka $3,367.36. Murry contends that the trial court

should not have admitted the exhibit because although it was filed in the justice

court, it was never filed in the county court, as evidenced by the affidavit’s style,

which contains information relevant to the justice court action.            Dodeka

acknowledged at trial that the affidavit contained the justice court cause number

instead of the county court cause number, but the trial court confirmed that

Dodeka filed the affidavit in the county court, as it was required to do after Murry

appealed the judgment of the justice court to the county court for a trial de novo.

We hold that the trial court did not abuse its discretion by admitting Plaintiff’s

Exhibit 1. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43

(Tex. 1998) (stating that evidentiary rulings are committed to trial court’s sound

discretion).

      In her third issue, Murry argues that the trial court erred by admitting

Dodeka’s ―Affidavit of Assignment, Damages, and Business Records‖ because it

was not ―discovered‖ during the trial de novo in the county court. While a party’s

failure to respond to a discovery request may prohibit the party from introducing

the requested discovery later at trial, see Tex. R. Civ. P. 193.6(a), Murry directs

us to no authority, nor are we aware of any, holding that evidence is inadmissible

simply because it was not the subject of a discovery request. Murry does not

contend that Dodeka failed to respond to any discovery that she propounded




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during the pendency of the litigation in the county court. We overrule Murry’s

third issue.

      We construe Murry’s fourth issue as challenging the legal sufficiency of the

evidence to support Dodeka’s breach of contract claim. We may sustain a legal

sufficiency challenge only when (1) the record discloses a complete absence of

evidence of a vital fact; (2) the court is barred by rules of law or of evidence from

giving weight to the only evidence offered to prove a vital fact; (3) the evidence

offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence

establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co.

v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040

(1999); Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of

Error, 38 Tex. L. Rev. 361, 362–63 (1960). The essential elements of a breach

of contract claim are the existence of a valid contract, performance or tendered

performance by the plaintiff, breach of the contract by the defendant, and

damages sustained as a result of the breach. City of The Colony v. N. Tex. Mun.

Water Dist., 272 S.W.3d 699, 739 (Tex. App.—Fort Worth 2008, pet. dism’d).

Here, Dodeka’s evidence shows that First USA Bank NA extended credit to

Murry in exchange for her agreement to make payments on the purchases or

advances that she made with the credit card, that Murry’s account has a

delinquent balance of $3,673.36, and that Dodeka acquired Murry’s account and

the right to collect the balance due thereunder. We hold that the evidence is




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legally sufficient to support the trial court’s judgment, and we overrule Murry’s

fourth issue.

      In her fifth issue, Murry argues that the trial court erred by admitting

Dodeka’s ―Affidavit of Assignment, Damages, and Business Records‖ because

the affidavit fails to comply with the requirements of rule of evidence 803(6). See

Tex. R. Evid. 803(6) (listing requisites for admission of records of regularly

conducted activity). To preserve a complaint for appellate review, a party must

have presented to the trial court a timely request, objection, or motion that states

the specific grounds for the desired ruling, if they are not apparent from the

context of the request, objection, or motion. Tex. R. App. P. 33.1(a); see also

Tex. R. Evid. 103(a)(1). If a party fails to do this, error is not preserved, and the

complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on

reh’g). Murry’s only objection to the affidavit at trial was that Dodeka did not file it

in the county court.2 She therefore failed to preserve this issue for appellate

review.3 See Tex. R. App. P. 33.1(a). We overrule Murry’s fifth issue.

      In her sixth issue, Murry argues that ―there is a high level of doubt that

justice was served, and the validity of this case is questioned‖ because while

Dodeka’s ―Affidavit of Assignment, Damages, and Business Records‖ indicates

that Murry owes $3,673.36, Dodeka’s counsel stated during her opening and

      2
       We addressed this argument in Murry’s first issue.
      3
       To the extent Murry argues that the affidavit fails to comply with any other
rules of evidence, those arguments are also waived.


                                           6
closing arguments that different amounts were due. It is well established that

statements made during opening and closing arguments are not evidence. In re

Commitment of Day, 342 S.W.3d 193, 197 (Tex. App.—Beaumont 2011, pet.

denied). The only evidence before the trial court was that Murry owes $3,673.36.

We overrule Murry’s sixth issue.

      In her seventh issue, Murry argues that the trial court elicited ex parte

communications from Dodeka when it requested that Dodeka submit proposed

findings of fact and conclusions of law. An ex parte communication is one that

involves fewer than all parties who are legally entitled to be present during the

discussion of any matter. Randolph v. Texaco Exploration & Prod., Inc., 319

S.W.3d 831, 836 (Tex. App.—El Paso 2010, pet. denied).               The record

demonstrates that Dodeka filed its proposed findings of fact and conclusions of

law with the trial court and mailed the proposed findings and conclusions to

Murry via certified mail the same day.     There is no evidence that Dodeka

engaged in any ex parte communications with the trial court.        We overrule

Murry’s seventh issue.

      In her eighth issue, Murry argues that findings of fact 8 and 9 are

erroneous because finding of fact 6 states that First USA Bank sold Murry’s

account to Unifund Portfolio A, but Dodeka’s ―Affidavit of Assignment, Damages,

and Business Records‖ indicates that Chase Bank USA, N.A. sold Murry’s

account to Unifund Portfolio A. Dodeka’s affidavit states that First USA Bank

changed its name to Bank One, Delaware, N.A., who subsequently merged with


                                       7
Chase Bank USA, N.A. Thus, findings of fact 8 and 9 are not erroneous because

the merged entities are one and the same. We overrule Murry’s eighth issue.

      Having overruled all of Murry’s issues, we affirm the trial court’s judgment.




                                                   BILL MEIER
                                                   JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DELIVERED: January 10, 2013




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