Opinion
No. 05-07-01759-CV
Opinion Issued February 18, 2009.
On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. cc-04-05002-a.
Before Chief Justice THOMAS and Justices MORRIS and FRANCIS.
Opinion By Justice FRANCIS.
MEMORANDUM OPINION
Phillip H. Purdie sued Terence A. Mikkelsen to recover on a debt. In three issues, Mikkelsen appeals the trial court's judgment awarding Purdie $36,441.97, pre-and post-judgment interest, and $18,000 in attorney's fees. Mikkelsen claims there is no evidence to support the trial court's finding (1) the agreement at issue was between Mikkelsen and Purdie individually, (2) Purdie was entitled to assert claims for a loan made by Texas corporations more than three years after the corporations had forfeited their existence, and (3) the claim was not barred by the statute of limitations. For the reasons that follow, we affirm the trial court's judgment.
In his first issue, Mikkelsen contends the trial court erred in finding the agreement in question was between Purdie and Mikkelsen individually and that Purdie had standing to bring the suit. Mikkelsen claims no evidence supports these findings. In his second issue, Mikkelsen contends the trial court erred in finding Purdie was entitled to assert claims for money loaned by Texas corporations more than three years after the corporations had forfeited their existence.
When, as in this case, a party is challenging the legal sufficiency of the evidence to support a finding on which he did not have the burden of proof at trial, the appellant must demonstrate on appeal that no evidence exists to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983); Brockie v. Webb, 244 S.W.3d 905, 909 (Tex.App.-Dallas 2008, pet. denied). We sustain a no evidence point only if there is no more than a scintilla of evidence proving the elements of the claim. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 520 (Tex. 2002). In making this determination, we view the evidence in the light favorable to the verdict, crediting favorable evidence if a reasonable fact-finder could, and disregarding contrary evidence unless a reasonable fact-finder could not." City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). We determine "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." Id. at 827. If more than a scintilla of evidence exists to support the finding, the legal sufficiency challenge fails. Formosa Plastics Corp. USA v. Presidio Eng'rs Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998).
At trial, Purdie testified he is originally from New Zealand but has lived in Dallas as a permanent resident since 1980. During that time, he has been in the "motor coaches, bus transportation" business. Purdie testified he met Mikkelsen, a fellow New Zealander, and some other business people who had traveled to Dallas. Mikkelsen told Purdie he had come to Dallas under the assumption he had a business person here who was going to lend him money so he could start building homes in Stonebriar. Mikkelsen's company was called Zea Tex Investments, Inc., and he was the sole member of the board of directors. The two men became friends. When Mikkelsen's business person backed out, Mikkelsen asked Purdie to loan him money which Purdie did. Purdie testified he put up $100,000 worth of vehicle titles and took out a personal loan of $26,500 to help Mikkelsen. He "personally gave it to [Mikkelsen] to help him out," and Mikkelsen personally promised to pay Purdie "100 percent." Purdie identified the checks paid to Mikkelsen or Zea Tex and reiterated that he loaned the money to Mikkelsen personally. Mikkelsen assured him he would pay Purdie back personally. Purdie also identified two letters to Purdie signed by Mikkelsen. The first letter is dated July 6, 1992, and the other is dated July 27, 1992. In the letters, Mikkelsen stated Purdie would be paid $15,000 in addition to his original contribution of $26,500. The July 27 letter concludes "As indicated to you, this arrangement is not only binding on the holding company, Zea Tex Investments, Inc., but on T.A. Mikkelsen personally as shareholder." Purdie also received a document, dated August 7, 1992, entitled "Written Consent of Sole Director in lieu of Organizational Meeting of Zea Tex Investments, Inc." The document, signed by Mikkelsen, states in pertinent part:
RESOLVED, That the Corporation borrow from Phillip A. Purdie the sum of $26,500 to be utilized as part o[f] the 15% deposit contribution requirement by American Federal Bank pursuant to the Interim Loan Agreement for $380,000 for house to be built on Lot 2 Augusta Place, Stonebriar. This sum is due for repayment, together with profit contribution of $15,000, upon the sale of the property.
Purdie testified he lent Mikkelsen the original sum of $26,500 plus additional amounts for a total of $39,786. He testified that, although the loan document does not state an interest rate, he was owed $25,936.87 based on a 6% interest rate as provided under Texas law. Purdie testified some of his payments were made from company accounts while others were made on personal accounts. Mikkelsen eventually moved back to New Zealand but sent Purdie money each year. He and Mikkelsen spoke by phone after Mikkelsen left the country, and Mikkelsen told Purdie he would send payments of $500 until "the whole debt was paid back." The last payment Purdie received was $2000 in August 2002. Purdie filed suit against Mikkelsen April 29, 2004.
We have viewed the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. After doing so, we conclude there is more than a scintilla of evidence to support the trial court's finding that Purdie and Mikkelsen entered into an agreement personally under which Purdie would lend Mikkelsen money and Mikkelsen agreed to be personally liable and pay Purdie back the money lent. Because Mikkelsen failed to demonstrate on appeal that no evidence exists to support the adverse finding, the evidence is legally sufficient. In light of this, we conclude we need not address Mikkelsen's argument that Purdie lacked standing or his argument the trial court erred in finding Purdie was entitled to assert claims for money loaned by Texas corporations more than three years after the corporations had forfeited their existence. We overrule Mikkelsen's first and second issues.
In his third issue, Mikkelsen claims the trial court erred in concluding Purdie's claims were not barred by the four-year statute of limitations. See Tex. Civ. Prac. Rem. Code Ann. § 16.004(a)(3) (Vernon 2002) (person must bring suit on action for debt not later than four years after day cause of action accrues). Mikkelsen argues Purdie only pleaded one exception to the statute of limitations, section 16.063 of the Texas Civil Practice and Remedies Code, and contends section 16.063 is unconstitutional as applied to Mikkelsen.
Limitations is an affirmative defense on which Mikkelsen had the burden of proof. See Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 220 (Tex. 2003) (party alleging affirmative defense of limitations must prove statute of limitations applies as well as date on which limitations commenced); see also Carlisle Corp. v. Med. City Dallas, Ltd., 196 S.W.3d 855, 861 (Tex.App.-Dallas 2006), rev'd in part on other grounds, 251 S.W.3d 55 (Tex. 2008). To prevail on appeal, the party with the burden of proof at trial must demonstrate the evidence conclusively established all vital facts in support of the issue. See Carlisle Corp., 196 S.W.3d at 861.
The evidence at trial showed, and the trial court found, the last payment made by Mikkelsen to Purdie was on August 7, 2002 in the amount of $2000. Likewise, the trial court found suit was filed by Purdie against Mikkelsen on April 29, 2004. Mikkelsen does not attack either of these findings of fact. The trial court concluded Purdie's "right to collection of such indebtedness is not barred by any statute of limitations." The trial court made no mention of any exceptions to the statute of limitations, nor does Mikkelsen explain on appeal why an exception must apply in this case. Because Purdie filed suit against Mikkelsen within fifteen months of the date of the last payment was remitted, we cannot conclude the trial court erred in finding Purdie's claims were not barred by the four-year statute of limitations.
In reaching this conclusion, we reject Mikkelsen's argument, made in a footnote, that "the claim accrued" August 26, 1992. Mikkelsen cites no evidence in the record to support this contention, nor does he discuss the applicable law to support this date as the accrual date. Thus, his argument is inadequately briefed. See Tex. R. App. P. 38.1. Because Mikkelsen failed to carry his burden on appeal, we cannot conclude the trial court erred. We overrule Mikkelsen's third issue.
We affirm the trial court's judgment.