      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00330-CV



                              Cameron Joseph Molberg, Appellant

                                                  v.

                                   The State of Texas, Appellee


               FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
           NO. C-1-CV-09-000545, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Cameron Joseph Molberg appeals from the judgment ordering him to pay the

State of Texas principal, interest, late charges, and fees based on his guaranty of student loans that

Amanda Miller1 failed to repay timely. Molberg contends on appeal that the State failed to prove

the satisfaction of a condition precedent to his obligation existed—namely that Miller’s failure to

pay was not due to her death or permanent and total disability. We will affirm the judgment.


                                         BACKGROUND

               Miller took out three college student loans through the Texas Higher Education

Coordinating Board. On each of these, Molberg agreed to guaranty payment. In the payment

guaranty section, the notes signed on June 30, 2003, and April 26, 2004, provide that “[i]f for any



       1
        There is testimony that Miller’s last name is now Jensen or Jenson. Because the loan
documents refer to her as Miller, we will use that name.
reason other than death or permanent and total disability of Borrower, the adjacent Borrower’s

Promissory Note is not paid promptly when due, I will immediately pay the source to the Lender

. . . .”2 Miller borrowed a total of $14,221.

                In January 2009, the State sued Molberg seeking the amount due on all three notes.

In his answer, Molberg asserted that the State failed to seek enforcement of the obligation against

Miller “whose current address is . . . and whose phone number is . . . and who recently, with

sufficient financial wherewithal, opened a day care center.” Molberg also asserted that the State

could not prove that Miller had failed to pay and that it had not complied with all conditions

precedent.

                In the January 2013 trial, the supervisor of student loan collections at the office of

the attorney general, John Maldonado, testified without contradiction that Miller owed $14,221 in

principal, $7,042.45 in interest, and $826 in attorney’s fees and court costs for a total of $22,089.45.

Maldonado testified that the State had obtained a judgment against Miller on five notes, that a

guarantor of one of the other notes had made payments on that note, and that Miller had not made

payments against the notes that Molberg guarantied.

                Molberg moved for judgment based on the State’s failure to prove that Miller

was alive and not suffering from a total and permanent disability. He contended that the absence

of Miller’s death or disability was a condition precedent to his obligation, and that the absence of

proof regarding the reason for her failure to repay the loans doomed the State’s case. The trial court

rendered judgment in the State’s favor in the amount Miller owed.


       2
         A note signed by the same parties on November 4, 2003, has slightly different wording in
the guaranty, but the differences have no legal significance in this appeal.

                                                   2
                                           DISCUSSION

               Molberg contends on appeal that the trial court erred by not granting him judgment

as a matter of law after the State failed to introduce any evidence of the satisfaction of condition

precedent to Mr. Molberg’s alleged obligations to perform under the guaranties.3 We view the

evidence in the light most favorable to the challenged finding and indulge every reasonable inference

that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005); GJP, Inc.

v. Ghosh, 251 S.W.3d 854, 871 (Tex. App.—Austin 2008, no pet.). We must credit favorable

evidence if a reasonable fact-finder could and disregard contrary evidence unless a reasonable

fact-finder could not. Keller, 168 S.W.3d at 827; GJP, 251 S.W.3d at 871.

               The record contains evidence on which the trial court could conclude that Miller’s

failure to pay the notes was not due to her death or disability. As set out above, Molberg stated in

his answer Miller’s address and phone number and asserted that she had “recently, with sufficient

financial wherewithal, opened a day care center.” Regarding such statements, the Texas Supreme

Court has held as follows:


       “Assertions of fact, not pled in the alternative, in the live pleadings of a
       party are regarded as formal judicial admissions.” Houston First Am. Sav. v. Musick,
       650 S.W.2d 764, 767 (Tex. 1983). A judicial admission that is clear and unequivocal
       has conclusive effect and bars the admitting party from later disputing the admitted
       fact. Gevinson v. Manhattan Constr. Co., 449 S.W.2d 458, 467 (Tex. 1969).




       3
         The State rejects Molberg’s assertion that the no-death-and-disability clause is a condition
precedent. We need not decide whether that assertion is valid because, even if we assume for
purposes of this opinion that the clause did impose on the State the burden to prove that Miller failed
to pay for a reason other than death or disability, the record contains legally sufficient evidence to
support the judgment.

                                                  3
Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001). While Molberg

did not expressly state that Miller’s failure to pay was not due to death or disability, his pleading

contains a clear, deliberate, and unequivocal statement that she had an address, a phone, and

the ability to open a business. The trial court could reasonably conclude based on those assertions

that Miller was neither dead nor permanently and totally disabled, and that her failure to pay the

notes was due to some other cause.4 To the extent that her well-being is a condition precedent, it

was satisfied. Molberg does not challenge the legal sufficiency of the evidence on the remaining

elements of the State’s case.


                                         CONCLUSION

               We affirm the judgment.




                                              Jeff Rose, Justice

Before Justices Puryear, Rose, and Goodwin

Affirmed

Filed: March 7, 2014




       4
         The State asserts that Molberg attached a declaration to his response to the State’s motion
for summary judgment in which he asserted that his wife had received communications from Miller
by telephone and email as late as February 2012—long after Miller defaulted. Because that response
was not made part of the clerk’s record on appeal and does not appear in the reporter’s record, we
have not considered it when formulating our opinion and judgment in this case.

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