                                 NUMBER 13-17-00115-CV

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


JAMIE MARSHALL,                                                                          Appellant,

                                                   v.

CROWN ASSET MANAGEMENT, LLC,                                                              Appellee.


                       On appeal from the 156th District Court
                            of Aransas County, Texas.


                               MEMORANDUM OPINION

   Before Chief Justice Valdez and Justices Contreras and Hinojosa
            Memorandum Opinion by Chief Justice Valdez

        Appellee Crown Asset Management, LLC (Crown) sued appellant Jamie Marshall

for breach of contract and stated account to recover $5,820.82 in unpaid credit card debt.1

The lawsuit was filed in February 2016. After a bench trial, the trial court entered



         1 According to Crown’s petition, First National Bank of Omaha (FNBO) originally issued the credit

card to Marshall, and the account was subsequently assigned to Crown. For ease of reference, we will
refer to FNBO as Crown throughout the opinion.
judgment for Crown and rejected Marshall’s defense under the statute of limitations.

Marshall prosecutes this appeal without a reporter’s record of the bench trial. By one

issue, Marshall contends that the trial court’s judgment should be reversed because

Crown’s suit was barred by the four-year statute of limitations. We affirm.

                                     I.         Standard of Review

        Marshall asserted limitations as a defense to Crown’s lawsuit, so she had the

burden to prove it at trial. See TEX. R. CIV. P. 94; Woods v. William M. Mercer, Inc., 769

S.W.2d 515, 517 (Tex. 1988). To reverse the trial court’s judgment based on limitations,

Marshall shoulders the burden on appeal to demonstrate that the evidence conclusively

established her limitations defense as a matter of law. See Dow Chem. Co. v. Francis,

46 S.W.3d 237, 241 (Tex. 2001).

                                          II.    Applicable Law

        Recovery under a breach-of-contract claim requires proof of four 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 by the plaintiff as a

result of the breach.” Eaves v. Unifund CCR Partners, 301 S.W.3d 402, 407 (Tex. App.—

El Paso 2009, no pet.).

        The elements of a claim for stated account include: “(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.” Id. at 407.2


         2 Closely related to a suit on a stated account is a suit on an open account. The elements of an

open account include: “[1] transactions between the parties, [2] creating a creditor-debtor relationship
through the general course of dealing, [3] with the account still being open, and with the expectation of
further dealing.” Eaves v. Unifund CCR Partners, 301 S.W.3d 402, 408 (Tex. App.—El Paso 2009, no pet.).

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       Crown’s claims for breach of contract and stated account are subject to a four-year

statute of limitations, so Crown was required to bring these claims “not later than four

years after the day the [claims] accrue[d].”             TEX. CIV. PRAC. & REM. CODE ANN. §

16.004(a)(3), (c) (West, Westlaw through 2017 1st C.S.). Generally, a claim is said to

“accrue” when facts come into existence that authorize the claimant to seek a judicial

remedy. See Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003).

However, Texas law defines the accrual date for a claim on an open or stated account

with more precision than the general rule—specifically, a claim on an open or stated

account accrues “on the day that the dealings in which the parties were interested

together cease.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(c).

                                          III.    Analysis

       Crown filed suit in February 2016. Thus, in order to prevail on her limitations

defense as to Crown’s claims for breach of contract and stated account, Marshall

shouldered the burden to prove that those claims accrued before February 2012—i.e.,

more than four years before suit was filed. Although Marshall does not provide us with a

reporter’s record of the evidence presented at the bench trial, we do have written findings

and conclusions entered by the trial court after the bench trial. We rely on these findings

to determine whether, as Marshall asserts, the trial court erred in rejecting her limitations

defense. The relevant findings are set out as follows:

                                         FINDINGS OF FACT

   1. [Marshall] applied for, and was issued, the Visa credit card that was in the
      Original Petition in this case.


An open account can become a stated account when the debtor acknowledges that the balance is correct
and unpaid. See Scofield v. Lilienthal, 268 S.W. 1047, 1049 (Tex. Civ. App.—Waco 1925, no writ).


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    2. [Marshall] understood that she was ultimately obligated to pay on that credit
       card.

    3. The amounts owed, as shown on the credit card statement, were correct.

    4. [Marshall] has previously made payments on this card account.

    5. [Marshall] has not made any payment on this account in the past four
       years.[3]

    6. . . . .

    7. The account statement, from October, 2012, shows interest and fees
       applicable for that month and the balance due on that statement is the
       amount for which [Crown] has brought suit.

    8. The credit reports offered in [Marshall’s] pleadings make no reference to the
       account sued upon in this case.

    9. The Original Petition was filed less than four years from the date of last
       account statement and account activity on the subject credit card account.

    10. [Marshall was served with the lawsuit] less than four years from the date of
        last activity on the subject credit card account.

    11. No evidence was presented regarding the date of the last purchase/charge
        on the subject account.

    12. No evidence was presented regarding the date of the last payment on the
        subject account.
                                 CONCLUSIONS OF LAW

    1. [Crown] established . . . the existence of a contract between [Marshall] and
       [Crown].

    2. . . . .

    3. [Crown] established . . . a breach of the contract[.]

    4. [Crown] established . . . a stated account for which [Marshall] is liable.

    5. . . . .


        3 It is not clear whether the trial court found that Marshall made no payment in the four years prior
to the time suit was filed in February 2016 or in the four years prior to the time of the bench trial in January
2017.

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     6. [Marshall] failed to establish facts that supported application of any
        limitations relief to which she should be entitled.

A.      Accrual

        According to Marshall, the trial court’s rejection of her limitations defense was

premised on a faulty legal conclusion as to when Crown’s claims accrued. Specifically,

Marshall asserts that the trial court erroneously determined that Crown’s claims accrued

in October 2012 (three years, four months before Crown filed suit) based on the last

account statement that Crown sent to Marshall. Marshall argues that Crown’s claims did

not accrue on that date but instead accrued earlier, when she stopped making payments

on the credit card.

        To support this position, Marshall relies on Dodeka, L.L.C. v. Campos, 377 S.W.3d

726, 731 (Tex. App.—San Antonio 2012, no pet.). In Dodeka, the San Antonio court held

that a creditor’s claim for breach of contract accrued on the date that the debtor stopped

making payments on her credit card. Id. However, Marshall’s reliance on Dodeka is

misplaced.

        First, in Dodeka, the evidence established the date on which the debtor made her

last payment, which undisputedly fell within the four-year limitations period. See id. Here,

unlike in Dodeka, the date of last payment is unknown because, according to the trial

court’s twelfth finding above, Marshall presented “[n]o evidence . . . regarding the date of

the last payment on the subject account.” Thus, even if we were to adopt Dodeka’s

holding that breach-of-contract claims in credit card cases accrue on the date of last

payment, the evidence in this case does not conclusively establish the date of last

payment. See Dow Chem. Co., 46 S.W.3d at 241. It was Marshall’s burden to prove her




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limitations defense at trial. See TEX. R. CIV. P. 94; Woods, 769 S.W.2d at 517; see also

Dow Chem. Co., 46 S.W.3d at 241.

         Second, Dodeka concerns the accrual date in debt collection cases that are pled

solely as a breach of contract. The Dodeka court specifically said this in the opinion. See

Dodeka, 377 S.W.3d at 730 (refusing to decide whether a suit on an open account

accrues on the date of last payment because “Dodeka did not bring this action as an open

account in any of the pleadings to the trial court” but instead relied only on a breach-of-

contract theory); Kaldis v. Crest Fin., 463 S.W.3d 588, 596 (Tex. App.—Houston [1st

Dist.] 2015, no pet.) (distinguishing Dodeka on the basis that the claim in that case was

limited to breach of contract). Thus, Dodeka does not aid Marshall in establishing her

limitations defense to Crown’s claim for stated account, which we address immediately

below.

B.       Stated Account

         As previously mentioned, a claim for an open or stated account accrues “on the

day that the dealings in which the parties were interested together cease.” TEX. CIV.

PRAC. & REM. CODE ANN. § 16.004(c). Consequently, in order to prove her limitations

defense to Crown’s stated account claim, Marshall had to establish that dealings between

her and Crown ceased prior to February 2012. See TEX. CIV. PRAC. & REM. CODE ANN. §

16.004(c); see also Dow Chem. Co., 46 S.W.3d at 241. Marshall maintains that the date

of last payment should mark the date on which dealings between her and Crown ceased.

However, again, the date of last payment is not known in this case.          Furthermore,

according to our legal research, the same court that decided Dodeka—the case on which

Marshall relies—held a year earlier in Conti and Cook that proof of the date of last



                                                6
payment is not conclusive evidence of the date on which the parties’ dealings ceased for

purposes of establishing a limitations defense to an open account, and therefore, the

debtors in those cases did not prove their limitations defense as to that claim. See Capital

One Bank (USA), N.A. v. Conti, 345 S.W.3d 490, 492 (Tex. App.—San Antonio 2011, no

pet.); see also LTD Acquisitions, LLC v. Cook, No. 04-10-00296-CV, 2011 WL 61634, at

*2 (Tex. App.—San Antonio Jan. 5, 2011, no pet.) (mem. op.). Thus, even if Marshall

could establish that she last made a payment sometime before February 2012, that alone

would not provide conclusive evidence of the date on which her dealings with Crown

ceased, as is her burden on appeal.4 See Conti, 345 S.W.3d at 492; see also Cook, 2011

WL 61634, at *2. Instead, the trial court could have found that, even if Marshall made her

last payment sometime before February 2012, her dealings with Crown continued until

the October 2012 account statement—i.e., until after February 2012—making Crown’s

suit on the stated account timely. Thus, even if we were to find that the trial court

reversibly erred in rejecting Marshall’s limitations defense to Crown’s breach of contract

claim under Dodeka, the record in this case would still support the trial court’s rejection

of Marshall’s limitations defense to Crown’s stated account under Conti and Cook. To

prevail on appeal, Marshall shouldered the burden to conclusively establish her limitations

defense as to both of Crown’s claims. See Dow Chem. Co., 46 S.W.3d at 241.




        4 We acknowledge that Crown pled a stated account rather than an open account, as was the case
in Conti and Cook. However, that pleading distinction is without any meaningful difference. The reason is
that, by statute, the accrual date for both open and stated accounts is governed by the same statutory
standard—i.e., “on the day that the dealings in which the parties were interested together cease.” See TEX.
CIV. PRAC. & REM. CODE ANN. § 16.004(c) (West, Westlaw through 2017 1st C.S.). Thus, we believe the
rule stated in Conti and Cook—that proof of the date of last payment is not by itself conclusive evidence of
the date upon which the parties’ dealings ceased—applies to a credit card collection action pled as a stated
account just as it does to one pled as an open account.


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      For the above reasons, we conclude that the trial court did not err in rejecting

Marshall’s limitations defense to Crown’s claims for breach of contract and stated

account. We therefore overrule Marshall’s sole issue.

                                    IV.       Conclusion

      We affirm the trial court’s judgment.



                                                        /s/ Rogelio Valdez
                                                        ROGELIO VALDEZ
                                                        Chief Justice

Delivered and filed the
14th day of December, 2017.




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