                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                         Assigned on Briefs December 8, 2011

      HOUSEHOLD FINANCIAL CENTER, INC. v. DARRELL KIRBY

                  Appeal from the Circuit Court for Davidson County
                     No. 09C93     Joseph P. Brinkley, Jr., Judge


               No. M2011-01039-COA-R3-CV - Filed February 7, 2012


Lender appeals the trial court’s decision awarding judgment in its favor for only part of the
debt it claims to be owed by borrower. Finding no error in the trial court’s factual findings
and conclusions, we affirm the decision of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
P.J., M.S., and R ICHARD H. D INKINS, J., joined.

Christine Allen Bratten and Ronald Edwin Cunningham, Knoxville, Tennessee, for the
appellant, Household Financial Center, Inc.

Darrell Kirby, Cookeville, Tennessee, Pro Se.

                                         OPINION

                        F ACTUAL AND P ROCEDURAL B ACKGROUND

       Darrell A. Kirby (“Borrower”) entered into a Personal Credit Line Account
Agreement with Household Financial Center, Inc. (“Lender”) on March 13, 2006. The
agreement describes the account as “a revolving line of credit” and designates a credit limit
of $10,000. Under the agreement, if Lender loaned Borrower amounts over the credit limit,
Borrower agreed to pay the excess amounts. Borrower promised to pay “(a) amounts
borrowed under this Agreement; (b) Finance Charges, Administrative Charges . . . and other
charges provided in this Agreement; (c) credit insurance charges, if any; (d) collection costs
permitted by applicable law, including reasonable attorneys’ fees and court costs; and (e)
amounts in excess of your credit limit that we may lend you.”
      Lender filed suit against Borrower in general sessions court in January 2008 on a
sworn account seeking $12,677.24 plus interest, attorney fees, and costs. Borrower filed a
sworn denial. After a hearing in December 2008, the case was dismissed with prejudice.
Lender sought a de novo appeal in circuit court.

        After a failed attempt at arbitration, the case was heard in circuit court on March 23,
2011. Both parties were represented by counsel, but Borrower was not present at the hearing.
As there is no transcript of the hearing, we rely on the statement of the evidence submitted
by the trial court.1 The only witness to testify was Angie Venator, an assistant vice president
of default services for Lender. A copy of the Personal Credit Line Account Agreement
between the parties was introduced as exhibit 1 to Venator’s testimony. Exhibit 2 was a copy
of a check for $2,965.01 issued to Borrower on March 13, 2006, with the notation “loan
proceed check.” Exhibit 3 was a ten-page computer printout consisting of various loan data,
including dates of payments and amounts. According to the statement of the evidence,
Venator “failed to explain the significance of this document as well as how to decipher this
ten page document, which the Court found was not self-explanatory.”

      The statement of the evidence includes the following summary of Venator’s
subsequent testimony:

        Angie Venator then stated that there was a previous loan extended to
        [Borrower] in the amount of $7,034.99. When this testimony was provided,
        it was the Court’s understanding that the $7,034.99 was a loan which was
        made to [Borrower] previously and before [Lender] executed the personal
        credit line account agreement (exhibit #1) on 3/13/06.

        The witness Angie Venator then testified that [Borrower] made six (6)
        payments . . . . The payments which were made by [Borrower] to [Lender]
        total $1,426.00.

        The witness further testified there were two additional advances made to
        [Borrower] in the amounts of $1,200 and $200; however, there was no
        reference to any documentation, and the Court noted there was no explanation
        from the witness how she was in a position to provide this testimony.




        1
         Lender submitted a proposed statement of the evidence, which was rejected by the trial court. The
court submitted its own statement of the evidence. See Tenn. R. App. P. 24(c), (e).

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       The witness Angie Venator further testified that [Borrower] sent two
       additional payments as follows: [description of checks returned for insufficient
       funds].

       The witness also testified [Borrower] owed [Lender] the following:

       a. Principal–$12,677.24

       b. Attorney’s fees in the amount of $1,901.59

       c. 22% interest rate which totals $11,425.67

       d. All of which totals $26,004.50

       The Court again noted that the witness provided no explanation for this
       testimony.

On cross-examination, Venator stated that she was a senior account representative, not vice
president of default services, at the time when the transactions at issue occurred. She did not
know who authorized the loan to Borrower or who signed the agreement, and she stated that
she could not speak for the person who signed the agreement. Over objections from counsel
for Borrower, the court allowed Venator to testify as a qualified custodian of records and
admitted all three exhibits. Borrower presented no witnesses or other evidence.

        In an order entered on April 29, 2011, the court entered judgment against Borrower
in the amount of $3,679.90 (principal of $1,539.012 , interest of $1,910.04, and attorney fees
of $230.85) plus post-judgment interest and costs. The statement of the evidence provides
the following explanation:

       Based upon [Lender’s] witness’ testimony regarding the previous loan
       extended to [Borrower] for $7,034.99 and the failure of that witness to explain
       the significance of exhibit #3, which exhibit was not self-explanatory, the
       Court ruled that [Lender] failed to carry its burden of proof that [Borrower]
       had drawn any more than $2,965.01 on the $10,000.00 line of credit which was
       extended to [Borrower] on 3/13/06 (exhibit #1).
       ...




       2
           This figure represents the principal amount of $2,965.01 minus payments of $1,426.00.

                                                    -3-
       The Court ruled based upon an admission by a party opponent (the testimony
       of Angie Venator) that [Borrower] had repaid $1,426.00 of the $2,965.01 loan
       (draw on the line of credit).

       The Court further ruled that there was nothing in the record to support
       [Lender’s] testimony that two additional advances were made to [Borrower]
       in the amounts of $200 and $1,200.

       The Court also noted that since [Lender’s] records custodian Angie Venator
       failed to explain the significance of trial exhibit #3 as well as how to decipher
       that ten page document that the witness was unfamiliar enough with these
       records and unfamiliar enough with [Borrower’s] account to be able to provide
       any explanation for any of the three exhibits which were not self-explanatory.

       On appeal, Lender argues that the trial court erred in awarding it substantially less
than the amount requested at trial.

                                   S TANDARD OF R EVIEW

        We review a trial court’s findings of fact de novo with a presumption of correctness
unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). We review
questions of law de novo with no presumption of correctness. Nelson v. Wal–Mart Stores,
Inc., 8 S.W.3d 625, 628 (Tenn.1999). The interpretation of a contract is a question of law.
Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn.1999).

                                          A NALYSIS

      Lender argues that the evidence presented at trial does not support the low amount of
damages awarded. Lender emphasizes that Borrower did not put on any proof to challenge
Lender’s evidence.

        As the plaintiff, Lender had the burden of proof to establish the elements of a breach
of contract: “(1) the existence of an enforceable contract, (2) nonperformance amounting to
a breach of the contract, and (3) damages caused by the breach of the contract.” ARC
LifeMed, Inc. v. AMC-Tenn., Inc., 183 S.W.3d 1, 26 (Tenn. Ct. App. 2005). The element at
issue in this case is the amount of damages, and the trial court found that Lender had only
proven $3,679.00 in damages, not the $26,004.50 requested. The difference between these
two figures reflects the trial court’s decision not to include Lender’s alleged $7,034.99
payment on a previous loan to Borrower and two advances totaling $1,400 (plus the interest
on these amounts).

                                              -4-
        Lender submitted into evidence a copy of the $2,965.01 check that is the basis for the
court’s award but did not submit any other checks. Exhibit 3, a computer printout found by
the trial court to be confusing, and the testimony of Venator failed to convince the trial court
of other loan amounts. Lender did not offer any proof to establish the existence of another
loan to Borrower. It should also be noted that the line of credit agreement signed by
Borrower does not contemplate Lender using the funds to service previous loans without a
request from Borrower. Given the proof presented at trial and the trial court’s unique
position to assess the credibility of the witness, we cannot say that the evidence
preponderates against the trial court’s decision.

                                         C ONCLUSION

       The decision of the trial court is affirmed. Costs of appeal, for which execution may
issue of necessary, are assessed against Lender.


                                                        ______________________________
                                                             ANDY D. BENNETT, JUDGE




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